Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 20TH DAY OF DECEMBER 2012 29TH AGRAHAYANA 193 CRL.A.No. 57 of 2006 (C) ------------------------ SC.796/2000 of ADDL. SESSIONS JUDGE, FAST TRACK (ADHOC) NO.II, TRIVANDRUM CP.77/2000 of J.M.F.C.-I, NEDUMANGAD ------------------ APPELLANT(S)/ACCUSED:: --------------------- UDAYAN, S/O. SURENDRAN, THOTTARIKATHU PUTHEN VEEDU, MANACHADI THALACKAL KUNDAMMOZHY, KAROD MURI, VILAPPIL VILLAGE THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENT(S)/COMPLAINANT:: --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.ROY THOMAS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt N.K.BALAKRISHNAN, J.
-------------------------------- Crl.A. No.57 of 2006 ------------------------------ Dated this the 20th day of December 2012 JUDGMENT
The appellant challenges the conviction and sentence passed against him for offence punishable under Sec.55(a) of Abkari Act. He was sentenced to R.I. for 1= years and to pay Rs.1 lakh as fine.
2. PW2, the Circle Inspector of Police along with his police party were on patrol duty on 16.7.1999 at about 4.30 PM. The appellant was found on the footpath in front of Fashion Tailors on the southern side of the road leading to Vellanadu. He was having in his possession a black can with a green lid. That can was of a capacity of 10 litres. When examined it contained full of liquor. It was identified by smell and taste as illicit arrack. That can was sealed. The mahazar (Ext.P1) was prepared for the seizure of the contraband. The accused was arrested. He was produced before the learned Magistrate on the next day. The records including the Crl.A. No.57 of 2006 -:
2. :- property list were produced before the learned Magistrate on the next day, ie; on 17.7.1999. The investigation was conducted by the Sub Inspector of Police (PW6) and final report was filed by PW7. The accused pleaded not guilty.
3. PW1 to PW7 were examined and Exts.P1 to P5 were marked. MO1, the plastic can containing the arrack was identified and marked. When the sample was sent for chemical examination, it contained 24.32% by volume of ethyl alcohol. Accepting the evidence given by PW2 and other witnesses, the learned Addl. Sessions Judge found the appellant guilty, convicted and sentenced as mentioned above.
4. Learned counsel for the appellant submits that the court below should not have relied upon the evidence given by the prosecution to find the appellant guilty. More specifically it is pointed out by the learned counsel that as per the seizure mahazar, the plastic can was having a lid of green colour. It was stated to have been sealed by PW2 in the presence of the witnesses. The properties were produced Crl.A. No.57 of 2006 -:
3. :- before the learned Magistrate on 17.7.1999 itself as per Ext.P4 property list. Since the seizure mahazar and all other records including Ext.P4 were produced before the court, the learned Public Prosecutor submits that there was no delay in production of the properties. But the learned counsel for the appellant submits that when the plastic can was produced before the court at the time of trial it was found to contain a lid of red colour which would sufficiently indicate that the can which was produced before the court was not the one allegedly seized from the possession of the appellant. Though it was stated in Ext.P1 that the sample was taken, the description of the same, especially as to the quantity of the sample taken was not mentioned. Ext.P4, the property list would show that besides the plastic can containing the liquor mentioned above, a sealed bottle of 180ml was produced as sample. But the curious aspect is that the said sample shown in Ext.P4 was not sent to the chemical examiner. Instead, another sample was taken by the court.
5. A submission made by the office (might be by the Crl.A. No.57 of 2006 -:
4. :- property clerk of that court) is seen on Ext.P4 which is to the effect that permission for collecting sample from the arrack be granted and the can containing the balance be entrusted to the Sub Inspector of Police for keeping it until further orders. The learned Magistrate has agreed to the same as could be seen from the endorsement dated 17.7.1999. It is important to note that no requisition of the investigating officer is seen marked, requesting the learned Magistrate to take sample from MO1 - Can already produced. The forwarding note was also not marked. That would prove that the sample which was requested by the investigating officer to be sent to the chemical examiner was not sent. The learned Addl. Sessions Judge has gone through all the records and found that some foul play was made in the office of the Magistrate Court. The learned Addl. Sessions Judge mentioned in the last part of paragraph 17 of the judgment that the signature found on the property list sent along with the letter of the Magistrate dated 12.8.2005 is entirely different from the signatures found on other records and so, having felt foul play in the matter, the Crl.A. No.57 of 2006 -:
5. :- learned trial Judge has made an observation that an enquiry has to be made in that matter by the learned Chief Judicial Magistrate, Thiruvananthapuram.
6. What was the quantity of sample that was taken pursuant to the order passed by the learned Magistrate, what was the seal used to seal that sample etc. are not clear from the records produced in the court. Ext.P5, the report of the chemical examiner shows that 180ml of country liquor involved in this crime was sent for examination. That sample reached the office of the chemical examiner only on 19.11.1999. Since the requisition and the forwarding note of the investigating officer were not seen marked, it is not clear as to whether the sample that was sent for examination was actually item No.3 (the sample sent as per Ext.P4). What happened to the sample that was sent to the court as per Ext.P4 is also a matter to be enquired into. It appears, the fact that a sample was already sent by the investigating officer as evidenced by Ext.P4 was suppressed by the office of the learned Magistrate (might be by the property clerk). Crl.A. No.57 of 2006 -:
6. :- Since the sample taken by the detecting officer was produced before court what was the necessity of taking a separate sample, that too, when no such requisition was given by the investigating officer. There is something fishy in the matter. More so, because the lid/cap of the can which was produced before the court at the time of trial was of red colour. Of course, it may be argued that the lid/cap was changed when the sample was taken from the court pursuant to the order passed by the learned Magistrate as seen endorsed on Ext.P4. But the learned counsel for the appellant submits that such an assumption cannot be had since that is a serious matter in respect of which evidence should have been adduced. The very fact that no explanation was offered by the prosecution as to what happened to the other sample sent as per Ext.P4 also assumes much relevance. The evidence regarding actual detection of the case as spoken to by PW2 does not suffer from any infirmity. But the whole confusion was created by the office of the learned Magistrate. The sample which reached the chemical examiner should have been the sample Crl.A. No.57 of 2006 -:
7. :- taken from the can seized from the possession of the accused. But there is inconsistency in the evidence regarding the same. Hence, the benefit of reasonable doubt has to be given to the appellant.
7. In the result, this Crl.A. is allowed. The conviction and sentence passed against the appellant are set aside. He is acquitted of the offence and is set at liberty. The bail bond executed by the appellant will stand cancelled.
8. A report as to whether any action was taken in the matter by CJM, Thiruvananthapuram in respect of what was stated by the learned Addl. Sessions Judge in paragraph 17 of the trial court judgment to be ascertained. Furnish a copy of this judgment to the Registrar (Subordinate Judiciary). N.K.BALAKRISHNAN, JUDGE. Jvt