Raghu Vs. State of Kerala - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE9H DAY OF JANUARY201419TH POUSHA, 1935 CRL.A.No. 1708 of 2003 (E) --------------------------- AGAINST COURT THE ORDER

/JUDGMENT

IN SC.364/2001 OF THE ADDL.SESSIONS (ADHOC)-II, THODUPUZHA DATED0610-2003 APPELLANT :ACCUSED : --------------------- RAGHU, S/O.GOVINDAN, VADAKKEKARA HOUSE, PAINAVU KARA, IDUKKI. BY ADV. SRI.PAULY MATHEW MURICKEN RESPONDENT: ------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.N.SURESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON0901-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J.

-------------------------------------- Crl.A.No.1708 of 2003 --------------------------------------- Dated this the 09th day of January, 2014 JUDGMENT

Challenging the conviction and sentence imposed on the appellant for the offence under Section 8(1) & (2) of the Abkari Act by judgment dated 06/10/2003 in S.C.No.364 of 2001 of the court of the Additional Sessions Judge (Adhoc-II), Thodupuzha, the above Appeal is preferred, at the instance of the sole accused in the above Sessions Case.

2. The prosecution case is that, on 10/9/2000 at about 7.45 p.m., when the S.I. of Police, Idukki and party were conducting patrol duty and when they reached Painavu area, they got reliable information regarding the sale of illicit liquor by the accused and on reaching the place near the Telephone Exchange Building at Painavu, they saw the accused and he was intercepted and on search of his body a bottle having the capacity of 375 ml. containing arrack was detected from the waist of the accused and he was arrested then and there and Crl.A.No.1708 of 2003 2 on further questioning, he had divulged about the concealment of arrack in a bottle as well as in a can in two different places and the same were also recovered and the total quantity of arrack so recovered would comes to 6.275 litres. Thus, according to the prosecution, the accused has committed the offence punishable under Section 8(1) & (2) of the Abkari Act.

3. On the above allegation, Crime No.208 of 2000 was registered in the Idukki Police Station and when the investigation was completed, a formal report was filed in the Judicial First Class Magistrate Court, Idukki and the learned Magistrate by his order dated 01/08/2001 in C.P.No.6 of 2001 committed the case to the Sessions Court, wherein S.C.No.364 of 2001 was instituted and eventually the said case was transferred to the present trial court for disposal.

4. When the accused initially appeared before the court of Assistant Sessions Judge, after furnishing the prosecution materials to him and after hearing the prosecution as well as the defence, a formal charge was framed and when the same Crl.A.No.1708 of 2003 3 was read over and explained to the accused, he denied the same and pleaded not guilty. Thereafter the case was transferred to the present trial court. During the further trial, the prosecution adduced its evidence by examining PWs.1 to 7 and producing Exts.P1 to P12, P9(a) & P12(a) documents. MOs.1 and 2 were identified as material objects. Though the defence had not adduced any separate evidence, the contradictory portions of 161 statement of the witnesses are marked as Exts.D1 to D3. After considering the available evidence and materials, the learned Judge of the trial court has found that the prosecution has established the charge levelled against the accused beyond reasonable doubt. Accordingly the accused is found guilty and he is convicted for the offence under Section 8(1) & (2) of the Abkari Act. On such conviction, the accused is sentenced to undergo rigorous imprisonment for a period of 4 years and to pay a fine of Rupees one lakh and in default he is directed to undergo simple imprisonment for a period of two months. Set off is allowed. It is the above Crl.A.No.1708 of 2003 4 finding and order of conviction that are challenged in this appeal.

5. Heard Sri.Pauly Mathew Muricken, the learned counsel for the appellant and Sri.N.Suresh, the learned Public Prosecutor for the State.

6. To prove the prosecution allegation, particularly to establish the detection of the crime, seizure of the contraband article and the arrest of the accused, the prosecution has examined PWs.1 to 5, among which PWs.4 and 5 are official witnesses, who have involved in the detection of the crime, whereas PWs.1 to 3 are independent witnesses, but they turned hostile towards the prosecution. Therefore, the prosecution is constrained to depend upon the evidence of PWs.4 and 5 to discharge its duty of proving its allegation against the appellant beyond reasonable doubt. PWs.4 and 5, who are respectively police constable as Sub Inspector of Police then attached to Idukki Police Station, when examined, deposed in terms of the prosecution allegation. According to Crl.A.No.1708 of 2003 5 these witnesses, when the police party headed by PW.5 were on patrol duty and when they reached Painavu Junction, PW.5 got information that Raghu, the accused herein was engaged in the sale of illicit liquor and accordingly the police party went in search of the accused and when they reached near to the telephone exchange building at Painavu, PW.5 saw the accused and on seeing the police party, the accused tried to escape from the spot, but he was intercepted. It is the further case of PWs.4 and 5 on search of the person of the accused, PW.5 detected a white bottle, containing colourless liquid, from the waist of the accused which on smelling and tasting was identified as illicit arrack in the presence of other witnesses. So, according to PWs.4 and 5, the accused was arrested then and there. According to PWs.4 and 5, after the arrest of the accused and during his interrogation, he gave information about the concealment of illicit arrack at two separate places. Thus, according to PWs.4 and 5, as per the disclosure statement of the accused and as led by him, the police party Crl.A.No.1708 of 2003 6 reached near the car shed of Govt. Employees Housing Co- operative Society and the accused took out a bottle containing 1.5 litres of liquid, which also was identified as arrack by smelling and tasting, and thereafter again proceeded to the forest land very near to the above mentioned car shed as led by the accused and the accused took out a plastic can containing about 4.400 litres of liquid, which also was identified as arrack by smelling and tasting. After effecting the entire recovery, according to PWs.4 and 5, a mahazar was prepared for the seizure of the contraband article. According to PW.5, the bottle first seized from the possession of the accused is preserved as sample and separate samples were drawn from the other bottle and the can and the bottles so prepared containing the samples were separately packed and the seal affixed. Thereafter, according to PW.5, himself and party returned to the Police Station and registered the crime as Crime No.208 of 2000 of Idukki Police Station. It is also the case of PW.5 that he had prepared a property list for Crl.A.No.1708 of 2003 7 producing the properties and the samples before the court and also prepared a forwarding note for sending the samples for chemical analysis report. When PWs.1 to 3 were examined, as I indicated earlier, they turned hostile towards the prosecution. However, as PW.1 has identified his signature in the mahazar prepared in this case, the same is marked as Ext.P1 through PW.1. Further Exts.P2 to P4 contradictory portion of 161 statement respectively of PWs.1 to 3 are also marked. When PW.4 examined, he had identified MO.1 plastic bottle having capacity of 1.5 litres and MO.2 plastic can having the capacity of 20 litres. When PW.5 was examined Ext.P5 property list, Ext.P6 arrest memo, Ext.P7 inspection memo, Ext.P8 arrest notice, Ext.P9 F.I.R., Ext.P9(a) F.I. Statement and Ext.P10 forwarding note are marked through him. The investigation in the present case was undertaken by PW.6, who was then working as Assistant Sub Inspector of Police, who finally laid the charge and at the time of laying the charge, he was working as Additional Sub Inspector of Police. When PW.6 Crl.A.No.1708 of 2003 8 was examined, Ext.P11 chemical analysis report is marked through him. PW.7 is the driver of the jeep hired by the police for the purpose of night patrol during the relevant period, as the official vehicle of the Idukki Police Station was under repair. Ext.P12 is the contradictory portion of 161 statement of PW.7, who turned hostile towards the prosecution. Ext.D1 is the contradictory portion of 161 statement of PW.4 and Exts.D2 and D3 are with respect to PW.7. It is on the basis of the above evidence and materials that the trial court came into its finding and convicted the appellant.

7. The learned counsel for the appellant vehemently submitted that, though the date of occurrence was on 10/9/2000, the material objects and the samples were produced before the court only on 19/9/2000 and there is delay of nine days and such unexplained delay will go against the prosecution. It is also contended that, though the allegation is that the accused was found engaged in the sales of illicit arrack, no sale proceeding is recovered and the said fact itself, Crl.A.No.1708 of 2003 9 according to the learned counsel, disapprove the case of the prosecution. It is contended that the accused is prejudiced as the detecting officer is not questioned and no statement is recorded by the investigating officer. According to the learned counsel, the entire prosecution case is rendered as doubtful, since the prosecution evidences on record are not sufficient to show that there was sufficient light at the place of occurrence for effecting the seizure as well as for preparing the mahazar and the evidence of PWs.4 and 5 contradict each other on this point. According to the learned counsel, the prosecution has miserably failed to intimate the court in time about the seizure effected and therefore the said facts go against the prosecution. It is also the contention of the learned counsel that there is no evidence to show who was the custodian of the contraband article as well as the samples after its seizure and till the same were produced before the court. It is also contended that the non-examination of material witnesses, who are police constables, are sufficient to disbelieve the Crl.A.No.1708 of 2003 10 prosecution allegation, since the prosecution wants to suppress the legal evidence from the scrutiny of the court, particularly when the police constables had witnessed the alleged seizure. So, according to the learned counsel, the trial court is not justified in convicting the appellant in the light of the above defects in the prosecution case. Per contra, the learned Public Prosecutor vehemently submitted that, though the independent witnesses turned hostile, the evidence of PWs.4 and 5 about the seizure of the contraband article including the first seizure of 375 ml. of arrack from the waist of the accused has been proved properly. According to the learned Public Prosecutor, the delay of 9 days cannot be treated as inordinate delay so as to reject the entire prosecution case. According to the learned Public Prosecutor, in the present case all relevant and necessary documents have been prepared by the prosecution in support of its allegation and such contemporary document further corroborated the evidence of PWs.4 and 5 the official witnesses. Thus, Crl.A.No.1708 of 2003 11 according to the prosecution the trial court is fully justified in convicting the appellant on the basis of the evidence adduced by the prosecution and as such no interference is warranted.

8. 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.

9. In the light of the rival contentions and in view of the evidence and materials on record, the question to be considered is whether the finding and conviction recorded by the trial court are sustainable. As I stated above, in the present case to prove the detection of the crime, seizure of the contraband article and the arrest of the accused we have only the evidence of the official witnesses and certain documents prepared by the prosecution. The independent witnesses examined in this regard turned hostile towards the prosecution and no matter such hostile attitudes of independent witnesses are usual in abkari offences and there is no rule that the Crl.A.No.1708 of 2003 12 official witnesses can be relied, only if their evidences are corroborated by the independent evidences. If the independent witnesses are turned hostile, the court must be more vigilant and cautious while evaluating the evidence of official witnesses and on such evaluation, if it is found that their evidences are free of doubt, infirmities or discrepancies, there is no illegality in accepting their evidence in support of a conviction. Therefore, the further question to be considered is how far the evidence of PWs.4 and 5 are reliable and acted upon in the present case. PWs.4 and 5 are the police personnels, who are involved in the detection of the alleged seizure and arrest of the accused. As far as an abkari offence is concerned, when the allegation against the accused is that he has committed the offence, and particularly under Section 55(a) and it is the bounden duty of the prosecution to prove that the accused was found in possession of the contraband article. So, all the facts deposed by the official witnesses towards such incident are very vital and important. On a perusal of the deposition of Crl.A.No.1708 of 2003 13 PW.4, we can see that, on many material points, his evidence is not in par with the evidence of PW.5, rather there is magnificent contradiction in their evidence. In the present case, as per the evidence of PW.5, he knows the accused previously and has prior acquaintance with him. It is also the case of the prosecution that PW.5 has been reliably informed by the persons that the accused by giving his name, had involved in the sale of illicit arrack. But PW.4, when examined, in the chief-examination itself he had deposed that PW.5 on seeing the accused ascertained his name and address. If PW.5 has got prior acquaintance and if the name of the accused mentioned to him by the informants, there was no necessity for PW.5 to ascertain the name and address of the accused. So, the above evidence of PW.4 goes against the evidence of PW.5 and the prosecution case.

10. In the present case, one of the contentions advanced by the learned counsel for the appellant is that the claims of the prosecution about the seizure and the preparation of the Crl.A.No.1708 of 2003 14 mahazar are false, since there was no sufficient light in the locality. It is the admitted case of the prosecution that the accused was firstly found at about 8 P.M. on 10/9/2000 and the mahazar was prepared at about 8.45 P.M. The place of occurrence is near to a forest area and none of the official witnesses has got any claim that there was sufficient light either at the places from where the recoveries were effected or at the place where Ext.P1 mahazar was prepared. During the cross-examination, PW.4 has deposed that the mahazar was prepared lighting a torch, possessed by the raiding party. But the above version of PW.4 is not supported by PW.5 and he has no case that any of the raiding party was in possession of torch. In the mahazar also there is no reference to a torch used for the purpose of preparing the mahazar or for effecting recovery. So, about the light for the purpose of preparing the mahazar as well as for effecting the recovery, absolutely there is no reliable evidence and the evidence on record is contradictory in nature, particularly among the official Crl.A.No.1708 of 2003 15 witnesses, namely PWs.4 and 5. So, the above facts and discussion reveal that, on several material facts, the evidence of PWs.4 and 5 are contradictory in nature. About the availability of light at the time of the incident and at the place of occurrence which are very material and relevant as far as the prosecution case is concerned and on that point also the available evidence of prosecution are contradicting each other.

11. The above being the position of the evidence of the official witnesses, there are some other vital defects in the prosecution case. The alleged recovery was effected, according to the prosecution, during the night of 10/9/2000, but, in view of Ext.P5 property list, it is crystal clear that the samples as well as the material objects were produced before the court only on 19/9/2000. Based upon the above facts, the learned counsel argued that there is substantial delay in producing the material objects and there is no explanation as to who was the custodian of the samples and the contraband articles till the same were produced before the court below. In Crl.A.No.1708 of 2003 16 support of the above contention the learned counsel placed reliance upon the decision of this Court in Damodaran Vs. S.H.O. [2008(1) KLT SN15 and Narayani Vs. Excise Inspector [2002(3)KLT725. Resisting the above contention, the learned Public Prosecutor submitted that the delay is not inordinate and it is quite usual, since the seizure was effected during the Onam season. I am unable to sustain the above contention of the learned Public Prosecutor. A Division Bench of this Court in Ravi Vs. State of Kerala [2011 (3) KLT353 has held that there should be explanation for the delay, when there is delayed production of the property. But the Division Bench in the above decision has also held "what is enjoined by the statute is only that the seizure of the property should be reported forthwith to the court." But, in the present case, on examination of the facts and circumstances involved in the case and the available evidences on record, according to me, are not sufficient to withstand the above test laid down by the Division Bench. It was PW.5, who allegedly effected the Crl.A.No.1708 of 2003 17 seizure and who prepared Ext.P5 property list and produced the sample and the material objects before the court. If the prosecution has got any plausible explanation, the same should have been brought on record through the deposition of PW.5. But PW.5 keeps silent on those aspects. Absolutely there is no explanation offered by PW.5 for the delayed production of the sample as well as the contraband article. In this juncture, it is relevant to note that, as per the version of the prosecution, PW.5 and party had gone for patrol duty on the date of incident by hiring a jeep, since the official vehicle was under repair. If that be so, there was no obstruction for PW.5 to produce the samples and the material objects in the court, when the accused was produced on the next day. In this regard also, no explanation is forthcoming from PW.5. So, it can be safely concluded that unexplained delay of 9 days in producing the samples and material objects is fatal against the prosecution. Crl.A.No.1708 of 2003 18 12. It is further relevant to note that, according to PW.5, the samples and the material objects were under his custody, but he is not speaking about the safety measures taken by him to preserve the samples in tact and against the tampering of the samples. The paucity of evidence about the safety measures taken by the prosecution to preserve the samples in tact coupled with the fact of delay of 9 days in producing the samples and material objects certainly, are vital facts which are sufficient to doubt the correctness and reliability of the prosecution case.

13. As I indicated earlier, the admitted case of the prosecution is that the seizure was effected after 8 p.m. on 10/9/2000 and the mahazar was prepared at 8.45 P.M. on the same day. No believable and acceptable evidence was brought on record by the prosecution to show that there was sufficient light during the alleged recovery and at the time of preparation of Ext.P1 mahazar. The attempt of PW.4, during his examination, was to get over the above adverse situation Crl.A.No.1708 of 2003 19 against the prosecution. With the above purpose he deposed before the court that patrolling party was having torch in their possession. But PW.5 did not support the above version and the availability of torch is also not mentioned in Ext.P1 mahazar. So, it cannot be believed that the seizure was effected and mahazar was prepared as claimed by the prosecution during the night of 10/9/2000. In this connection, it is relevant to note that the contention advanced by the learned counsel for the appellant about the non-examination of the material witnesses assumes importance. Though PW.4 claimed to have been accompanied by PW.5 at the time of the detection of the crime and the search and seizure of the contraband article, there is no whisper in his deposition that he had witnessed the drawing of sample by PW.5. It is also beyond dispute that in 161 statement of CWs.6, 7 & 8 they have also not stated that they had witnessed drawing of sample by PW.5. Thus, in case CWs.6, 7 & 8 are examined, their evidences are likely to go against the prosecution and Crl.A.No.1708 of 2003 20 therefore the prosecution willfully suppressed valuable evidence from the scrutiny of the court, particularly when PW.4 did not depose in favour of the prosecution about the drawing of sample by PW.5. So, the whole story of the prosecution about the arrest of the accused and the recovery of the contraband article from the possession of the accused has rendered as doubtful and unreliable.

14. In this case it is relevant to note that the investigation in this case was conducted not properly and the alleged seizure was effected deviating from the normal procedure to be adopted by the officer who detected the crime. The evidence connected with the two recoveries effected after the first recovery cannot be admitted. According to PW.5, the two recoveries were effected on the basis of the statement given by the accused, who was under the custody of PW.5 after his legal arrest on detecting the contraband article through the first recovery alleged. Suffice to say, no disclosure statement under Section 27 of the Evidence Act is recorded in this case. Crl.A.No.1708 of 2003 21 The last two recoveries were not effected from the place adjacent to the place, where first recovery was effected. After the arrest of the accused connected with the first recovery, the information said to have been furnished by the accused, rendered as inadmissible in view of Sections 25 and 26 of the Indian Evidence Act. PW.5 has no case that he had recorded the disclosure statement of the accused in terms of Section 27 of the Evidence Act and no such statements or documentary evidence are produced as well. So, the recoveries effected and the evidence collected in respect of the last two recoveries, no evidentiary value can be attached.

15. It is also relevant to note that preparation of a proper mahazar is necessary to ensure the correctness of the prosecution allegation and to show the authenticity of the seizure effected. But in the present case, as per the prosecution allegation after effecting the first recovery the investigating officer and party proceeded to the other two spots, from where the two subsequent recoveries were Crl.A.No.1708 of 2003 22 effected and thereafter as per the evidence of PW.5 all of them came back to the road with the accused as well as the contraband article and the materials and thereafter prepared common mahazar for the three recoveries effected and for the whole contraband article, which approach of PW.5, according to me, is not proper and correct and therefore no legal sanctity can be attached to Ext.P1 mahazar. To prove the drawing of sample from the contraband article seized, there is no evidence other than the claim of PW.5 the detecting officer himself, especially the independent witness turned hostile towards the prosecution. Therefore, solely on the basis of the evidence of PW.5, in the given facts and circumstances of the case, it is unsafe to conclude that there was proper and valid sampling. In the light of the above discussion and in view of the facts and circumstances referred to above, I am of the view that the trial court is not justified in its finding and convicting the appellant and the court below ought to have extended the Crl.A.No.1708 of 2003 23 benefit of doubt, and acquitted the accused. As the trial court failed to extend the benefit of doubt, I have no hesitation to extend such benefit in favour of the appellant and accordingly the conviction recorded against the appellant is set aside giving the benefit of doubt. In the result, this Appeal is allowed setting aside the judgment dated 06/10/2003 in S.C.No.364 of 2001 of the court of the Additional Sessions Judge, (Adhoc)-II, Thodupuzha and the appellant 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. If the appellant had already deposited any amount in terms of the order dated 14/10/2003 of this Court in Crl.M.Appln.No.10632 of 2003 in the above appeal, the same shall be returned to the appellant forthwith, in case an application is moved in the court below in this regard. V.K.MOHANAN, JUDGE skj