Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE3D DAY OF OCTOBER201311TH ASWINA, 1935 CRL.A.No.978 of 2005 (F) -------------------------- AGAINST THE ORDER
/JUDGMENT
IN SC1792001 of ADDITIONAL DISTRICTDATED & SESSIONS COURT (ADHOC)-II, KOLLAM1105-2005 APPELLANT: ------------- ASHOKAN, S/O.DIVAKARAN, ABHILASH NIVAS, ARUNOOTIMANGALAM CHERRI, MANGAD VILLAGE. BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP RESPONDENTS: --------------- 1.PUBLIC OF KERALA, REPRESENTED BY THE STATEPROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. SUB INSPECTOR OF POLICE, KILIKOLLOOR. BY PUBLIC PROSECUTOR SMT.M.T.SHEEBA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON0310-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J.
----------------------------------- Crl.A.No.978 of 2005 ------------------------------------ Dated this the 03rd day of October, 2013 JUDGMENT
The appellant, who is the first accused, challenging the judgment dated 11/5/2005 in S.C.No.179 of 2001 of the court of the Additional District and Sessions Judge (Ad hoc)-II, Kollam, preferred the above appeal as he is aggrieved by the conviction and sentence imposed on him for the offence under Section 55(a) & (i) of the Abkari Act.
2. The prosecution case in brief is that, in violation to the orders issued by the Government and the District Collector in connection with the general election to the parliamentary constituencies on 15th and 11th September, 1999 selling/serving liquor in liquor shops, hotels, restaurants, clubs and other establishments was banned, 1st accused who was running a hotel by name 'Durga' hotel, on 05/10/1999 at 6.25 p.m. in his hotel at shop junction, by the side of Kollam- Schencottah public road, possessed or stored for sale Indian made foreign liquor and sold it to accused 2 and 3 in the Crl.A.No.978 of 2005 :-2-: middle room of the said hotel and accused 2 and 3 consumed liquor and thereby the 1st accused committed the offence under Section 55(a) & (i) of Abkari Act and accused 2 and 3 committed the offence under Section 15(c) of the Abkari Act.
3. During the trial of the case, the accused 3 in numbers appeared and after hearing the prosecution as well as the defence, a formal charge for the offence under Section 55(a) of Abkari Act was framed against the first accused and a charge for the offence under Section 15 (c) of the Abkari Act was framed against the 2nd and 3rd accused which, when read over and explained to the accused, they denied the same and pleaded not guilty. Thus, during the stage of evidence, from the side of the prosecution, PWs.1 to 5 were examined and Exts.P1 to 8 were produced. Besides the above material objects, Mos.1 to 5 were also identified and marked. No evidence from the side of the defence is produced. The trial court finally found that the first accused possessed and sold Indian made foreign liquor in Durga Hotel in violation to Ext.P6 Government Order and accused Nos.2 and 3 consumed liquor sold by the first accused in his own hotel. Thus, Crl.A.No.978 of 2005 :-3-: according to the learned Judge, possession and sale of the contraband article is well established and prosecution has also proved that accused Nos.2 and 3 consumed liquor in the hotel in violation of Ext.P6 and accordingly, the first accused/the appellant herein is found guilty of the offence under Section 55 (a) & (i) of the Abkari act and thus he is convicted thereunder. The 2nd and 3rd accused is found guilty under Section 15(c) of the Abkari Act and accordingly they are convicted. On such conviction, the first accused/appellant is sentenced to undergo rigorous imprisonment of 2 years and to pay a fine of `1,00,000/- under Section 55(i) of the Abkari Act and in default of payment of fine, he is directed to undergo rigorous imprisonment for one year. No separate sentence is awarded for the offence under Section 55(a) of the Abkari Act. Set off is allowed under Section 428 of Cr.P.C. Accused Nos.2 and 3 are sentenced to pay fine of `2,500/- each under Section 63 of the Abkari Act. Challenging the conviction and sentence imposed on the first accused, he preferred the above appeal.
4. Heard Sri.George Varghese Perumpallikuttiyil, the learned counsel for the appellant and Smt.M.T.Sheeba, the Crl.A.No.978 of 2005 :-4-: learned Public Prosecutor for the State.
5. Among the prosecution witnesses, the first witness examined as PW.1, is an attestor to Ext.P1 seizure mahazar, but he turned hostile towards the prosecution. PWs.2 to 4 are official witnesses, who allegedly involved in the detection of the crime. PWs.2 to 4, when examined, have deposed fully supporting the prosecution and they have identified the documents and MOs. When PW.4, the then S.I. of Police examined, Ext.P1 seizure mahazar, Ext.P2 search list, Exts.P3 and P4 search memos, Ext.P5 F.I.R. in Crime No.254 of 1999 of Kilikolloor Police Station, Ext.P6 Order of the Department of Tax, Ext.P7 property list and Ext.P8 chemical analysis report were marked through him.
6. During the examination of PWs.2 to 4, they have deposed about the information received by PW.4 and they have deposed that in pursuant to such information, they proceeded to the shop of the appellant/accused and according to them, when they reached there, they noticed sale of liquor to A3 and accused Nos.2 and 3 were found consuming liquor and thus according to the official witnesses, MOs. were seized as per Crl.A.No.978 of 2005 :-5-: Ext.P1 seizure mahazar and accused were arrested from the spot. On the basis of the same, Ext.P5 F.I.R. was registered and on completing the investigation, PW.5 laid the charge. These are the evidences and materials referred to by the learned Judge in the impugned judgment.
7. The learned counsel for the appellant vehemently submitted that, the prosecution has miserably failed to prove the arrest of the present accused/appellant and also failed to prove that the appellant/accused sold liquor to accused Nos.2 and 3. According to the learned counsel, there is no seizure mahazar prepared from the place of occurrence and no evidence or materials is produced by the prosecution to connect the appellant/accused with the alleged incident. According to the learned counsel, the available evidences on record are not sufficient to prove that the appellant/accused was selling the liquor and accused Nos.2 and 3 consumed liquor sold by the first accused. According to the learned counsel, the oral evidence of prosecution witnesses and Ext.P1 seizure mahazar are silent as to the sampling of the contraband article and there is no detail as to who had drawn Crl.A.No.978 of 2005 :-6-: the sample and about the labelling and sealing of the samples. It is also the contention of the learned counsel that, the samples on the basis of which the chemical analysis report issued, are not the samples allegedly drawn from the contraband article said to have been seized from the place of occurrence. According to the learned counsel, the prosecution has not produced the forwarding note to ensure that the sample allegedly drawn from the spot reached the hands of the chemical analysts and also there was delay in producing the material objects before the court, and such delay has not been properly explained. After taking me through the evidence of prosecution witnesses and materials on record, the learned counsel submitted that, the evidence connected with the seizure and sampling in the present case is not believable. So, according to the learned counsel, the trial court has failed to consider the above facts which points towards the failure on the part of the prosecution and lacuna in the prosecution evidence and therefore the appellant is entitled to get an acquittal. In support of the above contention, the learned counsel has placed reliance upon the following decisions, Crl.A.No.978 of 2005 :-7-: namely, Gopalan Vs. State of Kerala [2012 KHC812 Sathi Vs. State of Kerala [2007(1) KHC778 Sasidharan Vs. State of Kerala [2007(1) KHC275 Raju Vs. State of Kerala [2012 KHC877.
8. On the other hand, the learned Public Prosecutor strenuously submitted that, even though there are some minor contradictions in the evidence of the prosecution witnesses, the available evidence shows that the search was conducted in pursuance to an information received by PW.4 and consequently contraband articles were seized from the shop of the present appellant/accused and the samples drawn from the liquor seized from the place of occurrence, which sent for chemical analysis and thus the evidences on record point towards the guilt of the accused and therefore the trial court is fully justified in convicting the appellant for the offence under Section 55(a) & (i) of the Abkari Act.
9. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have thoroughly perused the deposition of PWs.2 Crl.A.No.978 of 2005 :-8-: to 4 and other documentary evidence relied on by the prosecution.
10. In the light of the contentions advanced by the learned counsel for the appellant and the learned Public Prosecutor, the main question to be considered is, whether there was seizure of liquor from the possession of the appellant and whether he kept or used the same for sale and further question to be considered is, whether the prosecution has succeeded in proving that Ext.P8 chemical analysis report is on the basis of the sample drawn from the contraband article allegedly seized from the place of occurrence and whether the trial court is justified in convicting the appellant.
11. Though the learned counsel for the appellant advanced various contentions to assail the prosecution case, according to me, in the given facts and circumstances of the case the only question to be considered is, whether there is evidence to prove that the sample, allegedly drawn from the contraband article said to have seized from the possession of the appellant/accused have reached in a fool proof manner in the hands of the chemical analysts. Ext.P1 is the seizure Crl.A.No.978 of 2005 :-9-: mahazar allegedly prepared by PW.4, which relied on by the prosecution to prove the seizure of the contraband article from the possession of the appellant/accused and to prove the drawing of sample from such contraband article. Though I have repeatedly gone through Ext.P1 seizure mahazar, there is no whisper to the effect that the sample was drawn from the contraband article allegedly seized by PW.4 from the place of occurrence. Suffice to say, nothing is discernible from Ext.P1 about the procedure adopted by PW.4 for drawing proper samples and the preventive measures taken by him against tampering of evidence. A learned Judge of this Court in two separate decisions, i.e., in Lalitha Vs. State of Kerala [2012 (1) KLT550 and Nalinakshan Vs. State of Kerala [2012 (4) KLT575 has held respectively that in the absence of evidence as to who took the sample, no reliance can be given to the chemical examiner to conclude that the liquor is arrack and in the absence of evidence as to the taking of sample and its following steps, the conviction is bad. So, following the above decisions in the light of evidence on record it can be seen that, Crl.A.No.978 of 2005 :-10-: particularly in view of Ext.P1 seizure mahazar which is a contemporary document relied on by the prosecution, it can be safely concluded that absolutely there is no evidence as to the taking of sample.
12. As rightly pointed out by the learned counsel for the appellant, the evidence of prosecution in the present case renders no assurance that the sample reached the hands of the chemical analysts on the basis of which Ext.P8 report issued, representing the contraband article allegedly seized from the shop of the appellant/accused. On a conjoint reading of deposition of PWs.3 and 4, it can be seen that though it is mentioned in Ext.P1 about the drawing of sample of 100 ml. liquor each respectively from Mos.1 and 2. But, according to PWs.3 and 4, Mo.1 bottle having a capacity of 375 ml. from which 100 ml. liquor was taken for sample. So, naturally the remaining quantity might be 275 ml. But in the present case, MO.1 contained full of liquor i.e., 375 ml. Similarly, according to the prosecution, at the time of taking for sample, though the capacity was 375 ml., MO.2 contained only 100 ml. and that 100 ml. itself was taken for sample. So, naturally there will Crl.A.No.978 of 2005 :-11-: not be any residue in MO.2 bottle. But at the time of examination of MO.2, the same contained 100 ml. So, the above evidence of PWs.3 and 4 about the quantity drawn for sample are not tallying with the contents of MOs.1 and 2, that was seen at the time of the trial.
13. Further it is relevant to note that, in Ext.P8 chemical analysis report, what was certified by the chemical analyst is that they have received 2 sample bottles and each of the sample bottle containing 110 ml. The said certificate of the chemical analyst is also contrary to the claim of PWs.3 and 4 that from Mos.1 and 2 they collected 100 ml. each. Therefore, the learned counsel is right in his contention that there is no certainty about the quantity that reached the hands of the chemical analyst and that the sample said to have been drawn from the contraband article allegedly seized from the place of occurrence.
14. A learned Judge of this Court in the decisions reported in Sathi Vs. State of Kerala [2007(1) KHC778 has held that, the prosecution can succeed only if it has proved Crl.A.No.978 of 2005 :-12-: that sample, which was analysed in the chemical examiners laboratory, was the very same sample drawn from the contraband article which was in possession of the accused. Similarly, in another decision in Sasidharan Vs. State of Kerala [2007(1) KHC275 it is stated that, the prosecution should fail in the absence of evidence regarding as to who drew the sample for chemical examination, on what date and the date of despatch of the sample to the chemical examiner - Prosecution should further prove that the sample reached the chemical analyst in a tamper proof condition. The facts referred to above would show that, the present case of the prosecution and particularly the evidence on record, are not sufficient to withstand the text laid down in the above decisions.
15. It is further relevant to note that, in the evidence of PW.4 the detecting officer and PW.3 another witness examined on the side of the prosecution, there is no whisper that at the time of the alleged seizure the present accused was present and he was arrested then and there. No contemporaneous Crl.A.No.978 of 2005 :-13-: document is produced to show the arrest of the first accused/appellant. In this juncture, it is relevant to note that, though the arrest is seen recorded at 6.25 p.m. on 05/10/1999, the first accused was produced in the court only on 07/10/1999 after 24 hours. So the detention of the accused, if he was actually arrested on 05/10/1999, exceeding 24 hours is illegal and arbitrary. The explanation offered is that, on 06/10/1999, the next day to the arrest, it was a counting day connected with general election. So, regarding the arrest of the accused with the contraband article from the place of occurrence absolutely there is no evidence. It cannot be ignored that the prosecution has produced absolutely no evidence to prove that the shop in question belonged to the first accused/appellant and the same is under his control. So, according to me, there is no link evidence to implicate the accused, even if it was held that there was seizure on 05/10/1999.
16. In the light of the above discussion and the evidence and materials referred to above, I am of the firm opinion that, the prosecution has miserably failed to prove its allegation against the accused/appellant that he was found in possession Crl.A.No.978 of 2005 :-14-: of liquor in violation of Section 55(a) and he engaged in the sale of liquor on the date alleged. Therefore, I am unable to endorse the finding and conviction recorded by the trial court against the appellant and accordingly the same are set aside. In the result, this appeal is allowed setting aside the judgment dated 11/5/2005 in S.C.No.179 of 2001 of the court of the Additional District and Sessions Judge (Ad hoc)-II, Kollam and the appellant/accused is acquitted of all the charges levelled against him and the bail bond, if any, executed by him stands cancelled and he is set at liberty. V.K.MOHANAN, JUDGE skj