Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE6H DAY OF NOVEMBER201315TH KARTHIKA, 1935 CRL.A.No. 1295 of 2005 (F) --------------------------- AGAINST THE ORDER
/JUDGMENT
IN SC. 858/2001 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOLLAM DATED0707-2005 APPELLANT/ACCUSED: -------------------- SURENDRAN, S/O.MUHAMMEDKUNJU, SUNIL BHAVANAM, PRAYAR THEKKU MURI, CLAPPANA, KARUNAGAPPALLY. BY ADVS.SRI.C.AJITH KUMAR (KALLESSERIL) SRI.C.ANILKUMAR (KALLESSERIL) RESPONDENT/COMPLAINANT: -------------------------- STATE OF KERALA, (REP. BY EXCISE INSPECTOR IN Cr.No.37/99 OF KARUNAGAPPALLY EXCISE RANGE), REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.E.M.ABDUL KHADIR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON0611-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J.
-------------------------------------- Crl.A.No.1295 of 2005 --------------------------------------- Dated this the 06th day of November, 2013 JUDGMENT
Aggrieved by the judgment dated 07/07/2005 in S.C.No.858 of 2001 on the file of the court of the Additional District and Sessions Judge (Adhoc)-II, Kollam the accused therein preferred this appeal as he is convicted and sentenced for the offence punishable under Section 55(g) of the Abkari Act.
2. The prosecution case is that on 19/4/1999 at about 11.40 A.M. the accused was found in possession of about 210 litres of wash in six 35 litres cannases and put into a furrow in the courtyard of Sunil Bhavanam, belonged to the accused and thereby the accused has committed the offence punishable under Section 55(g), 8(1) and (2) of the Abkari Act. During the trial of the case PWs.1 to 6 were examined and Exts.P1 to P4 were produced from the side of the prosecution and besides the above, MO.1 series and MO.2 material objects were identified and marked. The trial court accepting the Crl.A.No.1295 of 2005 :-2-: prosecution evidence and found that their case has established and accordingly the accused is found guilty for the offence under Section 55(g) of the Abkari Act and he is convicted thereunder and on such conviction he is sentenced to undergo rigorous imprisonment for two years and to pay fine of `1,00,000/- in default of payment of fine, he is directed to undergo rigorous imprisonment for one more year. Set off is allowed. It is against the above finding and conviction and sentence this appeal is preferred.
3. Heard Sri.C.Ajithkumar, the learned counsel for the appellant and Sri.Abdul Khadir, the learned Public Prosecutor for the State.
4. Out of six prosecution witnesses examined, Pws.4 and 5 are independent witnesses, who are attestors to Ext.P1 mahazar but they turned hostile. To prove the search and seizure in the present case, the prosecution very much relied upon the evidence of PWs.1 and 6 among which PW.1 is the preventive officer, who accompanied PW.6 the detecting officer. According to these witnesses, while they were on Crl.A.No.1295 of 2005 :-3-: patrol duty, they got information that the accused was in possession and concealed wash in six can each having the capacity of 35 litres in the courtyard of the house of the accused and according to these witnesses, they proceeded to the scene of occurrence and when they reached the house namely Sunil Bhavanam seen locked and no one was present in the house and on watching the surrounding they detected loose soil on the courtyard on the Western side of the house and on removal of such soil, they detected six black cans each having capacity of 35 litres seen concealed in a pit. Thus, Cans were taken out of the pit and as the earth contains wash the same were seized and after taking sample the remaining liquid contained in the cans were destroyed. As the accused was not available at the spot according to Pws.1 and 6 he could not be arrested. The procedures adopted by PW.6 towards the seizure of the cans and drawing of sample, etc., are mentioned in the mahazar prepared then and there. According to these witnesses thereafter they came back to the Excise Range Office, Karunagapally and thereafter a crime was Crl.A.No.1295 of 2005 :-4-: registered and by preparing a property list the sample as well as the MOs. were produced before the court and subsequently sample sent for chemical analysis and got the report. Thus, when PW.1 was examined Ext.P1 mahazar is marked through him and he had also identified MO.1 series of cannas and MO.2 sample bottle. The accused was arrested by PW.2, the then C.I. of Police, Karunagappally Excise Range and he had deposed that the accused was arrested from a place, near to his house. Another C.I. of Excise, examined as PW.3 is the official who verified the investigation and laid the charge. When PW.6 the detecting officer was examined Ext.P2 occurrence report, Ext.P3 property list and Ext.P4 Chemical analysis report were marked through him. It is on the basis of the above evidence and materials on record, the trial court found that the accused/appellant is guilty and thus convicted him.
5. The learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. The Crl.A.No.1295 of 2005 :-5-: learned counsel in support of the above contention it is strenuously pointed out that the prosecution has not produced any document or independent evidence to show that the properties, from where the contraband articles were seized, within the exclusive possession of the appellant and belonged to him. After taking me through Ext.P1 mahazar and evidence of Pws.1 and 6 particularly the evidence of the independent witnesses Pws.4 and 5, it is submitted that no seizure as claimed by the prosecution was effected from the property of the appellant but Ext.P1 mahazar was prepared from the Excise Range Office. It is also the submission of the learned counsel that no proper sample has drawn and reached the hands of the chemical examiner in a fool proof manner and therefore Ext.P4 chemical analysis report cannot be relied. So, according to the learned counsel the prosecution has miserably failed to prove, by adducing acceptable and reliable evidence to establish the role of the accused in the commission of the offence alleged against him. On the other hand the learned Public Prosecutor submitted that the evidence of Pws.1 and 6 Crl.A.No.1295 of 2005 :-6-: supported by Ext.P1 mahazar shows that the wash kept in 6 cans were seized from the possession of the accused since it was unearthed from the courtyard of the house of the accused. So, according to the learned counsel all the contentions raised against the judgment of the trial court and its findings are liable to be rejected.
6. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor and I have perused the evidence and materials on record.
7. In the light of the rival contentions and in the light of the evidence and materials on record the question to be considered is whether the conviction recorded by the trial court against the appellant is sustainable. At the out set it is to be noted that even according to the prosecution they have no case that the accused was arrested from the place of occurrence and at the time of the seizure of the contraband article. Under the above factual input it is the un-shifted duty of the prosecution by adducing clear cut evidence to show that Crl.A.No.1295 of 2005 :-7-: in all possibilities the seized contraband articles were within the exclusive possession of the accused. Now let us examine whether the prosecution has succeeded in discharging such target. On consideration of the evidence and materials on record, adduced by the prosecution, except mere claim of PWs.1 and 6 and other official witnesses, there is no independent evidence or any documentary evidence to show that the property, from where MO.1 series of Can and the content thereon seized, belonging to the accused. According to me, in the nature of the prosecution allegation and in view of the factual input, dual duty is casted upon the prosecution. First of all, they have to prove that the property from where the seizure was effected belonged to the accused and he is in the possession and ownership of the same. Secondly the prosecution has to prove that the accused was in the exclusive possession of the above contraband article. The evidence of prosecution witnesses-the official witnesses shows that the house in question has no house number. No document like, ration card or identity card issued by the election commission Crl.A.No.1295 of 2005 :-8-: or similar documents were not searched out or produced by the prosecution. No local panchayat authority or officials of Revenue, examined or any document from their possession produced to show that the accused was residing in the so- called house or he was in possession and ownership of the property including the house at the relevant point of time. So, absolutely there is no legal evidence to connect the accused with the property from where the contraband articles seized and thus the link evidence to implicate the accused with the alleged offence of possession of wash.
8. As rightly pointed out by the learned counsel for the appellant no site plan got prepared from the concerned Village Officer showing the exact distance between the house in question and the spot at which the contraband articles seized, etc. There is also no mentioning in Ext.P1 mahazar about the distance in between the house in question and the spot from where the contraband articles seized. Moreover it is came in the evidence of the prosecution witnesses itself that very adjacent to the property from where the contraband articles Crl.A.No.1295 of 2005 :-9-: seized there is a road which lying adjacent to it. There is no evidence or materials to show that the alleged property of the accused is surrounded by any compound wall or any fence to rule out that no other person has access to such property. Under the above circumstances, it cannot be said that the contraband article seized by the prosecution in the present case, belonging to the accused and he was in the exclusive possession of the same at the relevant time.
9. It is also relevant to note that the claim of the prosecution about the seizure and the sampling, etc. cannot be believed due to various inflows in the evidence of prosecution both in the oral evidence as well as in the documentary evidence. PW.1 or PW.6 never deposed that at the time of the seizure any seal affixed on the sample. No sample seal is affixed on Ext.P1 mahazar. Though in Ext.P1 mahazar it is seen recorded that in a 750 ml. bottle PW.6 has collected 600 ml. of wash as sample, what certified by the chemical examiner as per Ext.P4 chemical analysis report is that they received a bottle containing 300 ml. wash. No explanation is forthcoming Crl.A.No.1295 of 2005 :-10-: for the difference in the quantity of sample. According to me, the above contradictions assume importance in the present case since no forwarding note is produced before the court to show that the prosecution agency requested the court to send the sample for chemical analysis. So, absolutely there is no evidence that what was the sample seal provided to the chemical examiner for their satisfaction that the sample was in tact. As I indicated earlier in Ext.P1 mahzar there is no description of the seal affixed on the sample. In Ext.P1 mahazar also specific impression of the seal is not affixed. No forwarding note is produced. Under the above circumstances there is no guarantee that the sample allegedly drawn by PW.6 reached the hands of the chemical examiner and therefore the endorsement contained in Ext.P4 chemical examination report to the effect that the seal on the bottle tallied with the sample seal provided cannot be accepted. In the light of the above discussion and in view of the evidence and materials referred to above and particularly in the absence of any substantial evidence to show that the Crl.A.No.1295 of 2005 :-11-: property from where the alleged seizure was effected exclusively belonged to the accused and he was in absolute possession thereof, according to me, it cannot be said that the prosecution succeeded in establishing its case beyond reasonable doubt and hence certainly the benefit of doubt will go in favour of the appellant/accused. Resultantly, the findings and conviction recorded by the trial court against the accused are set aside. In the result, this appeal is allowed setting aside the judgment dated 07/07/2005 in S.C.No.858 of 2001 on the file of the court of the Additional District and Sessions Judge (Adhoc) 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 True copy P.A. to Judge