Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY, THE 26TH DAY OF SEPTEMBER 2019 / 4TH ASWINA, 1941 CRL.A.No.905 OF 2006 AGAINST THE ORDER/JUDGMENT IN SC 652/2000 DATED 10-04-2006 OF ADDITIONAL SESSIONS COURT, FAST TRACK-III, THIRUVANANTHAPURAM AGAINST THE ORDER/JUDGMENT IN CP 32/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ATTINGAL APPELLANT/PETITIONER/ACCUSED: SATHEESAN S/O APPU, DIVYALAYAM VEEDU, CHIRAYIL, MUNDAKKAL,, VEILOOR VILLAGE, THIRUVANANHAPURAM TALUK. BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SMT.DEEPTHY.S.NATH SRI.PRABHU VIJAYAKUMAR SRI.P.K.SHIYAS SMT.VEENA KRISHNAN RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. OTHER PRESENT: SRI RAMESH CHAND-PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2-
ASHOK MENON, J.
------------------------------------ Crl.Appeal No.905 of 2006 ------------------------------------- Dated this the 26th day of September, 2019
J U D G M E N T
The appellant is the sole accused in SC No.652/2000 on the file of the Additional Sessions Court, Fast Track-III, Thiruvananthapuram, who was found guilty of having committed an offence punishable under Sections 8(1) and (2) of the Abkari Act and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- with a default sentence of three months simple imprisonment.
2. The prosecution case in brief is thus: On 4.8.1997 PW1, the Preventive Officer attached to the Kazhakkoottam Excise Range, along with PW2 and some other Excise Officials was on patrol duty and on reaching near the Mullassery temple road, they found the accused coming along the road holding a black jerry can with some liquid therein. He was intercepted and the liquid in the can, examined. They were convinced -3- that it was illicit arrack. The accused was arrested vide Ext.P2 arrest memo in the presence of PWs 3 and 5, who are independent witnesses. Ext.P1 mahazar was prepared and sample was drawn from the liquid in the jerry can, sealed and labelled. Intimation of arrest as per Ext.P3 was served on the wife of the accused.
The contraband article was produced before the Magistrate's Court as per Ext.P6 property list and Ext.P5 crime and occurrence report was registered. In accordance with Ext.P7 forwarding note, the sample
allegedly drawn from the contraband liquor seized from the accused was sent to the chemical examiner and in Ext.P8 report, the chemical examiner confirms that the liquid contains ethyl alcohol. PW4 is the Excise Inspector who conducted the investigation and submitted the final report.
3. The learned counsel appearing for the appellant assails the impugned judgment convicting the accused on various grounds. One of the main grounds is that the independent witnesses have turned hostile. It is also contended that the independent witnesses have -4- not signed Ext.P2 arrest memo and that the conviction based on the interested testimonies of PWs 1 and 2 will not sustain. It is also contended that the scene mahazar does not give the descriptions regarding the seal on MO-I can. The learned counsel also points out to the discrepancies regarding the scene of occurrence and the direction regarding the lie of the road. It is pointed out that PW2 is confused about the lie of the road. Further, it is contended that Ext.P7 forwarding note does not contain the specimen of the seal allegedly affixed on the sample drawn from the accused.
4. Heard Sri.Sasthamangalam S.Ajith Kumar, learned counsel for the appellant and Sri.Ramesh Chand, learned Public Prosecutor.
5. I am not convinced about the arguments
regarding the independent witnesses turning hostile, since it is the settled law that the testimonies of the excise officials or official witnesses are sufficient for the prosecution to prove seizure of contraband. Invariably all the independent witnesses, who are from the locality or from where the accused hails, turn
-5- hostile and if it is taken as a criteria, all the cases will end up in acquittal. The discrepancy regarding the lie of the road at the scene of occurrence is also very immaterial and is no mitigating circumstance. Not signing the arrest memo marked as Ext.P2 by the accused
also is not of fatal consequence. The arrest memo and the mahazar is signed by his wife apart from the intimation of arrest given to her. All these would substantially prove the version of the prosecution
case.
6. However, the glaring flaw which comes to the notice of this Court is regarding the absence of the specimen seal at the place where it is supposed to be on Ext.P7 forwarding note. This Court has in Krishnan H v. State of Kerala [2015 (1) KHC 822], Narayanankutty v. State of Kerala [2015 (1) KHC 702]
and Ravi v. State of Kerala [2018 (5) KHC 352] held
that the affixture of the specimen seal on the forwarding note is important for the reason that the court has to be convinced that the very same sample that was drawn from the contraband seized from the -6-
accused was sent for chemical examination, which resulted in the detection of ethyl alcohol in the sample. It is pertinent to note that neither Ext.P1
mahazar nor Ext.P7 forwarding note has the impression of the seal that was affixed on the sample and therefore this omission in the prosecution case would go to be benefit of the accused. For that reason alone, the impugned judgment is unsustainable. In the result, the criminal appeal is allowed and the conviction and the sentence ordered vide the impugned judgment are set aside and the appellant/accused is acquitted. He is set at liberty, in case he is not required in connection with any other case. The bail bond if any executed by the accused shall stand cancelled. Fine amount, if any paid, shall be refunded. Sd/- ASHOK MENON JUDGE jg