Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA MONDAY, THE 26TH DAY OF AUGUST 2013 4TH BHADRA, 1935 CRL.A.No. 32 of 2004 ( ) ------------------------- AGAINST THE ORDER/JUDGMENT
IN SC 143/1999 of ADDL. DISTRICT COURT (ADHOC)-I, KOLLAM DATED 29 12-2003 APPELLANT(S)/ACCUSED: ------------------------------------------ SHAILAJA, D/O. RETNAVALLY, KONNAKKOTTU VEEDU, AZHEEKKALTHURAI, ALAPPADU VILLAGE. BY ADV. SRI.A.AHZAR RESPONDENT(S)/COMPLAINANT: ----------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SMT. SHEEBA M.T. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B. KEMAL PASHA, J ------------------------------------ Crl. Appeal No. 32 of 2004 ----------------------------------- Dated this the 26th day of August, 2013 JUDGMENT
The accused in S.C.No.143 of 1999 of the Additional Sessions Court (Adhoc-1), Kollam, who stands convicted under Section 55 (g) of the Abkari Act and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for one more year has come up in appeal.
2. The prosecution case is that on 24-06-1998, at 5.00 p.m., the appellant was found keeping in her possession 45 litres of wash in a light green coloured can having a capacity of 50 litres for brewing arrack in a temporary shed situated on the northern side of her house at Azheeckalthura, Alappad Village. PW5 Assistant Crl. Appeal 32 of 2004 -:2:- Sub Inspector of Police, Ochira, on getting prior information, while he was on patrol duty, reached the spot, placed the appellant under arrest and seized the contraband through Ext.P1 mahazar. On reaching the police station along with the appellant, the contraband and the records, he registered the crime through Ext.P2 First Information Report. The contraband was produced before court through Ext.P3 and Ext.P3(a) property list. On obtaining Ext.P4 certificate of chemical analysis, the final report was filed.
3. On the side of the prosecution PWs 1 to 6 were examined and Exts.P1 to P4 were marked. MO1 was identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 55(g) of the Abkari Act, convicted her thereunder and sentenced her as aforesaid.
4. Heard the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel Crl. Appeal 32 of 2004 -:3:- for the appellant has argued that there is no sufficient evidence to connect the appellant with the crime. It is also argued that no sample was drawn in the presence of the appellant in this case and there is no evidence to show as to when the sample was produced before court.
5. The contraband allegedly seized from the possession of the appellant is 45 litres of wash, contained in a light green coloured can. PW3 was a police constable attached to the Ochira Police Station as on 24.6.1998. According to him, he was present along with PW5 and they were on patrol duty along with PW4 woman police constable. While so, PW5 got information that the appellant has been keeping wash in her possession for brewing arrack. They rushed to the spot and then they could seize MO1 can containing 45 litres of wash. PW3, PW4 and PW5 have almost given consistent versions regarding the said seizure through Ext.P1. At the same time, they have no case that any sample was drawn from the contraband at the spot in Crl. Appeal 32 of 2004 -:4:- the presence of the appellant. According to PW5, no sample was drawn and the contraband as such was produced before PW6.
6. According to PW6, he conducted the investigation of the case and he verified the investigation conducted by PW5. According to him, the contraband involved in this case was not received by the court and therefore, it was being kept at the police station. No sample was taken by the detecting officer. According to him, a sample of 750 ml was taken and that was produced before court through Ext.P3(a), a separate property list. Ext.P3 is the property list dated 24.6.1998 filed by PW5 which shows that he has produced MO1 can containing 45 litres of wash as the property. There is no evidence to show as to when it was returned by the court and to whom it was returned. It seems that the said property was received by court on 28.7.1998 only, as per T No.297/98. Even though Ext.P3 is dated 24.6.1998, it is found that the same Crl. Appeal 32 of 2004 -:5:- along with the contraband was allegedly produced before court as material object only on 28.7.1998. No reason has been shown as to why the property was kept at the police station for more than a month after the seizure. Ext.P3(a) is another property list dated 24.6.1998 filed by PW6. It shows that the property covered by it was 750 ml of wash contained in a bottle. At the same time, it seems that, without putting a date, the month is shown as July and the year is shown as 1998 at the bottom of Ext.P3(a). Even though Ext.P3(a) is dated 24.6.1998, it was received by the court only in the month of July, 1998. It seems that the court has received the material object on 28.7.1998 as T No.297/98. Admittedly, no sample was drawn in the presence of the appellant, at the spot. The sample was allegedly drawn after more than one month by PW6 without any authority, that too, not in the presence of the appellant and the said sample was produced before court. The taking of such a sample is lacking in Crl. Appeal 32 of 2004 -:6:- transparency. Matters being so, there is absolutely nothing to show that Ext.P4 certificate of chemical analysis pertains to any sample allegedly drawn from the contraband, allegedly seized from the possession of the appellant. Hence, the conviction entered by the court below is bad in law and is only to be set aside. In the result, this Criminal Appeal is allowed and the conviction and sentence passed by the court below are set aside. The appellant is acquitted. Her bail bonds shall stand cancelled and she is set at liberty forthwith. Any amount towards fine, if deposited by the appellant, shall be refunded to the appellant. Sd/- B. KEMAL PASHA, JUDGE ul/- [True copy] P.S. to Judge