IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 26TH MARCH, 2009 / 5TH CHAITHRA, 1931 CRL.A.No. 335 of 2007 (SC.1417/2001 of ADDL.SESSIONS COURT for TRIAL OF ABKARI ACT CASES, NEYYATTINKARA) .................... APPELLANT/2ND ACCUSED: --------------------------------------- SASI, S/O.NADESAN, VELLACHIMAMOODU ROADARIKATHU VEEDU, KALLIMOODU, VELLARADA VILLAGE. BY ADV. SRI.SAJU.S.A RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2009, ALONG WITH CRA NO. 1277 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.Nos. 335 of 2007 & 1277 of 2008 --------------------------------------------- Dated this the 26th day of March, 2009 J U D G M E N T As the above two appeals are arising out of the judgment dated 15.2.2007 in Sessions Case No.1417 of 2001 in the court of the Additional Sessions Judge for the trial of Abkari Act Cases, Neyyattinkara, these appeals are heard together and are being disposed of by this common judgment. Crl.A.No.335 of 2007 is preferred by the second accused in the above case and the execution of the sentence was suspended by this Court. Thus, he is on bail. Whereas Crl.A.No.1277 of 2008 is preferred by the third accused, who is undergoing imprisonment pursuant to the impugned judgment, from the jail. 2. The prosecution case is that when PW3, the Sub Inspector of Police, Vellarada Police Station conducted patrol duty along with the party on 16.3.2000, he found accused Nos.1 to 3 at about 3 a.m. at Kuttappoo-Kudappanamoodu at Kovilloor Desom, Amboori Village in possession of 35 litres jerry can, filled with arrack, which the accused persons possessed in contravention of the provisions of the Abkari Act CRA Nos.335 of 2007 & 1277 of 2008 :-2-: and thereby committed the offence punishable under Section 58 of the Abkari Act. On the basis of the above allegation, Crime No.72 of 2000 of Vellarada Police Station was registered. After completing the investigation, a final report was filed before the Judicial First Class Magistrate Court-III, Neyyattinkara wherein C.P.No.24 of 2001 was instituted. The learned Magistrate, by his proceedings in the above C.P., committed the case to the Sessions Court, Thiruvananthapuram from where the same was made over to the Assistant Sessions Court, Neyyattinkara and subsequently made over to the trial court for disposal. After hearing the prosecution as well as the defence, a formal charge was framed under Section 58 of the Abkari Act which was read over and explained to the accused to which they pleaded not guilty. Consequently, the prosecution adduced evidence consisting of testimonies of Pws.1 to 4 and the documentary evidence such as Exts.P1 to P8. When the incriminating circumstances are put to the accused under Section 313 of the Cr.P.C., they denied the same. The accused took a stand of total denial. No evidence was adduced either documentary or oral. The trial court, on the basis of the rival pleadings and materials on record, formulated four issues for its consideration and finally CRA Nos.335 of 2007 & 1277 of 2008 :-3-: found that the prosecution has succeeded in establishing the charge against accused Nos.2 and 3 and therefore, they were found guilty under Section 58 of the Abkari Act. As far as the first accused is concerned, according to the court below, the prosecution has not succeeded in proving the case against him beyond reasonable doubt and thus, he was acquitted under Section 235 of the Cr.P.C. Consequent to the finding of guilt of accused Nos.2 and 3 under Section 58 of the Abkari Act, each of the 2nd and 3rd accused was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1 lakh. The default sentence is fixed as six months. Set off is allowed under Section 428 of the Cr.P.C. It is the above finding, conviction and sentence challenged in this appeal. 3. I have heard Sri.S.A.Saju, counsel appearing for the second accused in Crl.A.No.335 of 2007. As Crl.A.No.1277 of 2008 is an appeal from the jail, Advocate Mr.M.P.Liju of this Court was appointed as State Brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard Sri.M.P.Liju, counsel appearing for the appellant in Crl.A.No.1277 of 2008 and Sri.C.M.Nazar, the learned Public Prosecutor appearing for the State. CRA Nos.335 of 2007 & 1277 of 2008 :-4-: 4. The specific case of the prosecution is that when PW1 was conducting patrol duty on 16.3.2000 at about 3 a.m, he found the accused three in numbers in possession of arrack, filled in a 35 litre white jerry can. It is also the case of the prosecution that on seeing PW3, the first accused ran away from the place of occurrence, abandoning the contraband article which was in his possession and he could not be apprehended from the spot. According to the prosecution, accused Nos.2 and 3 were arrested from the spot and the contraband articles were seized from the spot and subsequently, the accused as well as contraband articles were produced before the court below. 5. The prosecution mainly depends upon the evidence of PW3 to prove the seizure and arrest of the accused. PW3 is the then Sub Inspector of Police, Vellarada Police Station who detected the crime. When he was examined in the court, he deposed in terms of the prosecution case to the effect that on 16.3.2000 during patrol duty, he found the accused persons 1 to 3 at Kuttappoo road and each of them was in possession of 35 litre jerry can containing contraband and the first accused left the place, abandoning the contraband article which he was carrying at the relevant time. PW3 further deposed that he intercepted CRA Nos.335 of 2007 & 1277 of 2008 :-5-: with these appellants/accused Nos.2 and 3 and on their questioning, it was confirmed that the jerry cans were containing illicit arrack. The same is further confirmed by smelling and tasting the contents of the jerry can. Thus, according to PW3, accused Nos.2 and 3 were arrested from the spot and the jerry cans were seized as per mahazar, sealed in the presence of witnesses and label was affixed on them. Ext.P1 is the mahazar. When PW3 was examined, apart from Ext.P1, Ext.P2 F.I.R., Ext.P3 thondi list and Ext.P4 remand report of accused Nos.2 and 3 were identified and marked. PW3 stated that he made request to the court for effecting sampling and for sending the same for chemical analysis and accordingly, Ext.P5 report was obtained from the analysis. Ext.P6 is the remand report with respect to first accused. PW3 questioned the witnesses and finally filed the charge sheet. He had identified the three jerry cans as MO1 series. Out of MO1 series, one can is empty and the seal was broken. The other two were sealed and the same contained the liquid inside it. Pws.1 and 2 are the two independent witnesses cited and examined by the prosecution to prove the seizure and arrest of the accused. But they turned hostile. PW4 is another witness examined by the prosecution so CRA Nos.335 of 2007 & 1277 of 2008 :-6-: as to prove the receipt of the contraband article in the court, extraction of samples from the contraband article and forwarding the same for chemical analysis etc. PW4 was the then Thondy Section Clerk of J.F.C.M's Court-III, Neyyattinkara. When she was examined, she stated that she received the thondy articles as per Ext.P3 thondy list on 16.3.2000 and the same was entered in page 27 of the Thondy Register as T.89/2000 on that date. Ext.P8 is the extract of thondy register which contained the endorsement with respect to T.89/2000. According to PW4, she extracted sample from the thondy items as per the orders of the learned Magistrate in three bottles, each contained the quantity of 180 ml. According to her, in Ext.P8, the endorsement will be seen regarding the sending of sample extracted, to the lab for chemical examination. On the basis of the above evidence and materials, the trial court found that the appellants 2 and 3 are guilty. Though the first accused was charged with the same offence, the trial court found that the prosecution is successful in establishing the case against him beyond reasonable doubt and accordingly, he was acquitted. 6. Challenging the finding of the court below and order of conviction and sentence, the learned counsel for the appellant CRA Nos.335 of 2007 & 1277 of 2008 :-7-: in Crl.A.No.1277 of 2008 submits that absolutely there is no material or evidence to show that the accused including the third accused were arrested from the spot as claimed by the prosecution. Learned counsel pointed out that though it is stated that the accused were arrested from the spot in Ext.P1 mahazar, no arrest memo was prepared then and there and no such document is produced before the court. The learned counsel for the third accused further submits that there is no cogent and convincing evidence regarding the drawing of sample from the contraband article and as such according to the learned counsel, the prosecution has miserably failed to prove its case against the appellants/accused by adducing convincing and cogent evidence. Therefore, according to the learned counsel, the finding of the court below is liable to be set aside. 7. Counsel appearing for the second accused in Crl.A.No.335 of 2007 submits that the prosecution case cannot be believed as such since they failed to convince the court the entire allegations against the accused. Learned counsel pointed out that the only evidence available is that of PW3 regarding the detection of the crime and his evidence is not trustworthy and the same is not free from infirmities and contradictions. It is also CRA Nos.335 of 2007 & 1277 of 2008 :-8-: pointed out by the learned counsel that even, according to PW3, CW2 also accompanied him at the time of alleged seizure and Ext.P1 was prepared by CW2 at the instance of PW3. But, CW2 was not examined and non-examination of such material witnesses resulted in great prejudice to the accused. It is also pointed out that though PW3 has claimed in his deposition that the jerry cans, which are alleged to have seized from the spot, were pasted with labels and the jerry cans were sealed, there is no supporting material or evidence to substantiate the claim of PW3. Learned counsel invited my attention to the deposition of PW3 in which PW3 stated that when the Police was effecting the seizure, as it is legally seized and sealed, it is not necessary to state specifically that it was taken and sealed. It is also pointed out by the learned counsel that though Pws.1 and 2 were cited and examined, they turned hostile and as such there is no independent evidence to corroborate the interested version of PW3. It is pointed out that even the prosecution could not establish and identify that the signature contained in Ext.P1 is that of Pws.1 and 2. Thus, according to the learned counsel, the prosecution has miserably failed to prove the case against the accused including the second accused beyond reasonable doubt CRA Nos.335 of 2007 & 1277 of 2008 :-9-: and therefore, the finding of the court below is absolutely incorrect and liable to be interfered with. 8. On the other hand Sri.C.M.Nazar, learned Public Prosecutor submits that the prosecution had succeeded in establishing the case against the accused as rightly found by the court below. The evidence of PW3, the detecting officer alone is sufficient to prove the fact of seizure and arrest of the accused. It is pointed out that though PW3 was subjected to lengthy cross- examination, nothing was brought on record to discredit his version. It is also pointed out that in support of the evidence of PW3, connected with the contemporaneous document, the prosecution has tried to adduce the independent evidence by examining Pws.1 and 2. According to the learned Public Prosecutor, even though Pws.1 and 2 turned hostile, the same will not be affected the prosecution as such since the evidence of PW3 is intact and sufficient to prove the case against accused Nos.2 and 3. The evidence of PW3 is corroborated by the contemporaneous document Ext.P1 and also Ext.P3 thondi list. Learned Public Prosecutor pointed out that seizure was effected at about 3 a.m. on 16.3.2000 and after necessary official formalities, the accused as well as the contraband articles were CRA Nos.335 of 2007 & 1277 of 2008 :-10-: produced before the court at 3 p.m. on the very same day and there is absolutely no laches or negligence on the part of the investigating agency in producing the materials before the court below and also the accused. The learned Public Prosecutor conceded that no sampling was done at the spot from where the contraband articles were seized, but the same will not affect the prosecution since samples were drawn under the supervision of the court, by PW4 who is none other than the thondi clerk and the samples were sent to the chemical lab. Consequently, Ext.P5 report was received which would guarantee and ensure the correctness of the prosecution case. It is pointed out that large quantity of illicit arrack were seized and therefore, the finding of the court below is not liable to be interfered with and accordingly, there is no merit in the appeal and the same may be dismissed. 9. I have carefully considered the arguments advanced by both the counsel for the appellants as well as the learned Public Prosecutor. I have also perused the evidence and materials on record. 10. According to the prosecution, the contraband articles were seized by PW3 when he found the accused in possession of the same during his patrol duty and according to the prosecution, CRA Nos.335 of 2007 & 1277 of 2008 :-11-: the contraband articles were seized then and there. Normally, when the contraband articles were seized, the seizure and detection will be reflected in the document prepared at the spot itself. When PW3 was examined, no explanation is forthcoming from him why no sample was drawn from the spot itself. In Ext.P1 mahazar also, no explanation is seen in not drawing the sample from the spot. Of course, the failure on the part of the investigating agency in not drawing the sample from the spot itself is not a ground to be considered against the prosecution, but in the absence of sufficient explanation, the court has to consider the other attendant circumstances. Even according to PW3, Ext.P1 mahazar was written by CW2 who is a driver of the vehicle accompanied by PW3. It is a case where though prosecution has cited and examined Pws.1 and 2 independent witnesses to prove the seizure, they turned hostile. Still then, there is no explanation as to why the person who prepared Ext.P1 mahazar has not been examined though he was cited as a charge witness. If CW2 was examined, the accused will get an opportunity to bring materials on the basis of which the court can come to a correct finding. But, without assigning any reason, CW2 was not examined and he was given up. So, naturally, it CRA Nos.335 of 2007 & 1277 of 2008 :-12-: will result prejudice to the accused. Regarding the seizure of the contraband article, the evidence of PW3 is not satisfactory. Though I have repeatedly perused Ext.P1, there is no statement to the effect that MO1 series of jerry cans were seen and the same were labelled properly. But contrary to the contents of Ext.P1, PW3 deposed before the court that it was sealed and cans were pasted with labels. The above claim of PW3 is further belied by the endorsement that is seen in Ext.P3 thondi list. There is no description regarding MO1 series. When PW4 was examined, from the side of the prosecution, nothing was brought on record to the effect that when she received the material objects in the court, the cans were properly tightened, sealed and labelled. Under the above factual situation, it is further seen that the contraband article and the accused were produced before the court at 3 p.m. on 16.3.2000. But, the seizure was effected at 3 a.m. on the same day. So these material objects were supposed to be under the custody of PW3 or in the Police Station. But the evidence of PW3 is not sufficient to rule out any tampering of the contraband article and the MO1 materials. So even though PW3 claimed that the contraband articles were seized on 16.3.2000, no precautions are taken or PW3 failed to appraise the court CRA Nos.335 of 2007 & 1277 of 2008 :-13-: below that by adopting safe procedure, he had ruled out all possibilities of tampering the evidence. 11. It is also relevant to note that Pws.1 and 2, the so- called independent witnesses though cited and examined, they turned hostile. It is to be proved that the alleged detection of the crime was at about 3 a.m. on 16.3.2000. The evidence of PW3 does not disclose as to how he procured these witnesses at that time. It is also relevant to note that even though Pws.1 and 2 were declared as hostile, no attempt was made from the side of the prosecution to identify the signature that contained in Ext.P1 as that of Pws.1 and 2. As pointed out earlier, when PW3 was examined, he deposed that the materials objects MO1 series were sealed at the time of the seizure and the labels were pasted on the same. I have already indicated the defects noted connected therewith. Still then, PW3 is of the opinion that the same was seized and sealed and his explanation is to the effect that whenever the Police made the seizure, the materials must be sealed by them and it is not necessary to say or record that the same were sealed. The above explanation is not acceptable. So regarding the seizure, the evidence is shabby in nature and not satisfactory and not up to the standard required. CRA Nos.335 of 2007 & 1277 of 2008 :-14-: 12. Regarding the sample, there is no cogent and convincing evidence. It is true that samples were drawn by PW4 who is the thondi clerk of the committal court. But, her evidence is also not convincing. The date of actual drawal of the sample is not mentioned in any of the documents relied on by the prosecution produced before the court. From Ext.P5 chemical analysis report, the samples were reached there on 26.5.2000. As indicated earlier, MO1 series of cans were not properly sealed and labelled. So, the sanctity of the drawing of sample itself is under doubt. PW4 did not state the procedure adopted by her for drawing the samples. After the trial, there is no concrete material to show which is the sample drawn from the contraband article, which is alleged to have been possessed by accused Nos.2 and 3. It is also relevant to note that PW4 had drawn only the three samples from the contraband article. As on today, there is no material whether these three samples were drawn from one of the cans, out of the three or these three samples were brought from one sample each from three jerry cans. Since the actual date of drawing of sample is absent, the evidence of PW4 regarding the safeguards adopted by her to keep samples intact is also relevant. In the evidence of PW4, there is no statement in CRA Nos.335 of 2007 & 1277 of 2008 :-15-: this regard. It is also relevant to note that PW4 deposed that the learned Magistrate issued order for taking the sample. The forwarding note is not produced before the court and not marked as prosecution document. So the above defects with respect to the drawing of sample will go against the prosecution and in favour of the accused. 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 the hands of the Chemical Examiner in a foolproof condition. In the above decision, this Court has held as follows:- “Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample 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, the Prosecution cannot be held to have brought home the offence against the appellant. The prosecution had duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the Chemical Examiner in a foolproof condition.” On application of the above decision in the present case, it can be seen that the prosecution has miserably failed to adduce link CRA Nos.335 of 2007 & 1277 of 2008 :-16-: evidence of actual sampling by drawing the same from the can and sending the same in sealed packet to the chemical examiner with a specimen seal sent separately for temper proof despatch. Therefore, the prosecution has miserably failed to establish that samples were drawn from the contraband article alleged to have been found in possession of the accused. 13. The Abkari Act contemplates stringent punishment if the offence alleged against the accused is proved. So it is the duty of the prosecution to prove its case by adducing cogent and convincing evidence to the satisfaction of the court. But, in the present case, the prosecution miserably failed to prove its case against the accused beyond shadow of doubt. As the prosecution has miserably failed to prove the case beyond reasonable doubt, the accused are entitled to the benefit of doubt. 14. In the light of the above finding, I am of the view that the finding arrived on by the court below and the conviction and sentence ordered against the appellants is not sustainable and liable to be set aside. 15. In the result, the judgment dated 18.2.2007 in S.C.No.1417 of 2007 convicting the appellants/accused and the CRA Nos.335 of 2007 & 1277 of 2008 :-17-: consequent sentence, is set aside. The accused/appellants are acquitted of all the charges levelled against them and they are set at liberty. The bail bond, if any, executed by the accused is cancelled and he is set at liberty. In the light of the order of acquittal, consequent to the setting aside of the impugned judgment, the third accused/the appellant in W.A.No.1277 of 2008 is entitled to get release from the jail. Therefore, there will be a direction to release the third accused/ the appellant in Crl.A.No.1227 of 2008 forthwih if he is not required in any other case. The appeals are allowed. V.K.Mohanan, Judge MBS/ CRA Nos.335 of 2007 & 1277 of 2008 :-18-: V.K.MOHANAN, JJ. -------------------------------------------- Crl.A.Nos.335/2007 & 1277/2008 -------------------------------------------- J U D G M E N T DATED: 26-3-2009 CRA Nos.335 of 2007 & 1277 of 2008 :-19-: