Anilkumar vs State of Kerala

K. Ramakrishnan, J.—Accused in SC. No. 292/2002 on the file of the Additional Sessions Judge (Fast Track Court-I), Thiruvananthapuram is the appellant herein.

The case of the prosecution in nutshell was that on 07.04.1998 at 9 a.m., the accused was found in possession of 2= litres of arrack in a black Can on the southern side of Karamana-Killipalam road in front of Killi bridge PRS hospital in Nedumcaud ward, Manacaud village in violation of the provisions of the Abkari Act and thereby he had committed the offence punishable under section 8(1) r/w section 8(2) of the Abkari Act.

After investigation, final report was filed and it was taken on file as CP. No. 200/2000 on the file of Judicial First Class Magistrate Court-III, Thiruvananthapuram and the learned Magistrate has committed the case to the Court of Sessions, Thiruvananthapuram where it was taken on file as SC. No. 292/2002 and thereafter, it was made over to Additional Sessions Court (Adhoc-I), Thiruvananthapuram for disposal.

When the accused appeared before the court below, after hearing the counsel for the appellant as well as the Additional Public Prosecutor, charge under section 8(1) and 8(2) of Abkari Act was framed and the same was read over and explained to him and he pleaded not guilty.

In order to prove the case of the prosecution, PWs 1 to 3 were examined and Exts. P1 to P5 and MO1 were marked on the side of the prosecution. After closure of the prosecution evidence, the accused was questioned under section 313 of the Criminal Procedure Code (hereinafter called the Code) and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that he had not committed any offence and he has been falsely implicated in the case. According to him, while he was walking along the road, a jeep came and he misunderstood the same for police jeep and he ran away from the place and he was chased by the officials and he fell down and sustained injuries and at that time, 5 to 6 persons caught hold of him and when they asked him as to why he ran away from the place, he told that there was a warrant pending against him and he misunderstood them as police officials. Thereafter, he was taken in the jeep and taken to excise office and falsely implicated in an Abkari case. After examination of the accused under section 313 of the Code since the learned Additional Sessions Judge found that it was not a fit case to acquit him under section 232 of the Code, he was called upon to enter on his defence. Accordingly, DW1 was examined and Ext. D1 was marked on the side of the appellant. After considering the evidence on record, the court below found the appellant guilty under section 8(1) r/w section 8(2) of Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for one year and also to pay a fine of one lakh in default to undergo simple imprisonment for six months more. Aggrieved by the same, the present appeal has been preferred by the appellant/accused before the court below.

Heard the counsel for the appellant and the learned Public Prosecutor.

The counsel for the appellant submitted that there were discrepancies in the evidence of PWs 1 and 2 regarding the place of occurrence from where the alleged detection was made. Further, no independent witnesses were examined to prove the seizure. The summons issued to them were returned as they left the place and according to PW 3, he had questioned them and recorded their statement. But he was not able to say the house number etc., of those witnesses and that shows that the witnesses cited by the prosecution alleged to have witnessed seizure were not the real witnesses available from the place. In the absence of examination of independent witnesses, relying on the evidence of official witnesses alone, the court below was not justified in convicting the appellant. Further, no spot sample was taken and there is no evidence to show that Ext. P5 relates to the representative sample said to have been taken from the article alleged to have been seized from the possession of the appellant. In the absence of such evidence, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles seized was arrack which is prohibited under section 8(1) of the Act and conviction is not sustainable. He had relied on the decision reported in Sasidharan K.K. and Others Vs. State of Kerala and Another, and also Manikantan Pillai Vs. State of Kerala,

On the other hand, the learned public prosecutor submitted that the case of the accused was one of false implication and it is for the accused to prove that fact. Once that fact has not been proved, then there is a presumption relates back to the incident narrated by the prosecution and there is nothing to disbelieve their evidence on this aspect. Further the sample was taken from court and it was sent from court and so there is a presumption that it was properly done. So, according to the learned public prosecutor, the court below had considered all the evidence and rightly come to the conclusion that the accused had committed the offence and convicted him for the offence alleged and no interference is called for.

The prosecution case depends on the evidence of PWs 1 and 2 the detecting officer and the officer who accompanied the detecting officer and also Ext. P1 mahazar and Ext. P5 chemical analysis report. The evidence of Pws 1 and 2 will go to show that on 07.04.1998 at about 9 a.m. while they were doing petrol duty and when they reached in front of PRS hospital, Killipalam bridge on the Karamana-Killipalam road in Manacaud village, they saw the accused coming with MO1 Cannas and PW 1 intercepted him and examined the contents of the Cannas which contained 2= litres of liquid and on examination, he was satisfied that it was arrack. He convinced the same to the victim as well. Then he sealed the same with his personal seal with letters DK and seized the same as per Ext. P1 mahazar in the presence of CWs 3 and 4, the independent witnesses. Thereafter, he arrested the accused and prepared Ext. P3 arrest memo and came to the excise office and registered Ext. P2 crime and occurrence report and produced him before the court along with the contraband article on the same day at 1.45 p.m. and he was remanded to custody.

It is true that there was some discrepancies regarding the manner in which the inspection of vehicles were done by PWs 1 and 2 in their deposition and it is also true that the evidence of DW1 coupled with Ext. D1 will go to show that the number of vehicles which were said to have been inspected by them were not mentioned in Ext. D1 general diary. But the explanation given by DW1 will go to show that it is not necessary to mention the vehicle numbers in the general diary and only if any crime has been detected while inspecting the vehicle, then only the number of that vehicle need alone be mentioned. So, under the circumstances, the court below was perfectly justified in coming to the conclusion that that discrepancy in the evidence of PWs 1 and 2 is not sufficient to disbelieve their case.

It is true that the independent witnesses cited as seizure witnesses to Ext. P1 mahazar namely, CWs 3 and 4 were not examined. But on going through the judgment, it is seen that though summons were issued to them in the address shown, it was returned with endorsement that they left the address and the present address is not known. It is also seen from the judgment that in spite of coercive steps taken, their presence could not be procured. So, it cannot be said that the independent witnesses were voluntarily given up by the prosecution so as to come to the conclusion that they are withholding the best evidence before the court. The court has taken necessary steps to get their presence by taking coercive steps and in spite of that, their presence could not be procured. So, under the circumstances, the court below was justified in coming to the conclusion that since nothing was brought out to discredit the evidence of PWs 1 and 2 regarding the arrest and seizure of MO1 from the possession of the accused, non-examination of the independent witnesses is not fatal to the case of the prosecution.

Though, the accused had a case that he has been arrested by the excise officials not from the place from where he was alleged to have been arrested with the contraband article as alleged by the prosecution, no independent evidence was adduced on the side of the accused to prove that fact. Further, when he was produced before the magistrate, he had no such case as well. So, under the circumstances, the court below has perfectly justified in coming to the conclusion that the accused had failed to prove the false implication alleged by him. So, under the circumstances, the court below was perfectly justified in coming to the conclusion that the accused was arrested by PW 1 along with MO1 Cannas which was said to have contained illicit arrack.

It is an admitted fact that no spot sample was taken from the contents of the Cannas which was alleged to have been seized by PW 1 which according to him was the arrack. Unless, it is proved by the prosecution that representative sample that has been taken from the contraband article was sent for chemical analysis and the report obtained represents that representative sample to come to a conclusion that the article seized is the same article and it is arrack, it cannot be said that the prosecution has proved beyond reasonable doubt that the accused was found to be in possession of arrack as claimed by them.

It is seen from the report which was produced before the magistrate that the accused along with the articles were produced before the Additional Chief Judicial Magistrate in his chamber on 7.04.1998 at 1.45 p.m. itself and he was directed to be produced before the court on 13.04.1998. In the report, it was mentioned that the mahazar, thondy list etc., were also produced. Further, it is seen from the document produced that it was produced before the court on 15.04.1998 and thereafter, it was entrusted to the excise officials for custody on 17.04.1998. There is nothing mentioned in the document produced as to from where the sample was taken and whether any contemporaneous records were prepared for the purpose of preparing the sample from court as well.

In the decision reported in Sasidharan K.K. and Others Vs. State of Kerala and Another, , it has been held that prosecution has got a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the chemical examiner in a fool proof condition. In the same decision it has been observed that committing magistrates have to take care that contemporary proceedings evidencing the drawing of sample and sending the same to the chemical examiner in a tamper proof condition are recorded in a proceedings before court. Sessions Judge trying such cases also should ensure that the concerned member of the staff who had drawn the sample and despatched to the same to the chemical examiner duly packed and sealed under the covering letter of the magistrate is examined before court during trial. The learned public prosecutor in charge of the case also had a duty to file an additional witness list for examining the thondy section clerk (property clerk) concerned so as to establish the nexus between the contraband substance and the accused.

The same view has been reiterated by the Division Bench of this court in (Ravi V State of Kerala) (2011 (3) KLT 353). In that case also, this court has observed that no conviction can be entered against the accused in a prosecution as the present one unless it is proved that sample which was analysed in chemical examiner''s laboratory was a very same sample drawn from the contraband liquor allegedly found in the possession of the accused. In this case, there is no evidence adduced on the side of the prosecution to prove that sample was taken from the contraband article which has been alleged to have been seized and Ext. P5 chemical analysis report relates to that sample. This aspect has not been considered by the court below before coming to the conclusion that the accused had committed the offence. In the absence of evidence adduced on the side of the prosecution that Ext. P5 chemical analysis report relates to the representative sample that has been taken from the contraband article alleged to have been seized from the possession of the accused, it cannot be said that the prosecution has proved beyond reasonable doubt that the accused was found to be in possession of arrack and he had committed the offence under section 8(1) r/w section 8(2) of the Abkari Act and the accused is entitled to get that benefit which the lower court has not given in favour of the accused. So, the finding of the court below that the prosecution has proved beyond reasonable doubt that the accused had committed the offence under section 8(1) r/w section 8(2) of Abkari Act and consequential conviction entered by the court below are unsustainable in law and the same is liable to be set aside and I do so.

In view of the finding that prosecution has failed to prove that he had committed the offence punishable under section 8(1) r/w section 8(2) of Abkari Act, the sentence imposed by the court below is also illegal and the same is also liable to be set aside and I do so.

In the result, the appeal is allowed. The order of conviction and sentence passed by the court below against the accused in SC. No. 292/2002 who is the appellant herein under section 8(1) r/w section 8(2) of Abkari Act are set aside and the appellant is acquitted of the charge levelled against him giving him the benefit of doubt. He is set at liberty. The bail bond if any executed by the appellant will stand cancelled. The amount if any deposited towards the fine as directed by this court is directed to be returned to the appellant by the lower court on making application before that court for that purpose.

Office is directed to communicate this judgment to the concerned court immediately.