Gopinathan vs Excise Inspector and State of Kerala

A. Hariprasad, J.—Appeal filed u/s 374(2) of the Code of Criminal Procedure (for short, "Cr.P.C."). Appellant was convicted by the trial court for offences under Sections 8(1) and (2) and 55(a) of the Abkari Act (for short, "Act") on the allegation that on 20.10.2001 at about 6.15 p.m. he was found possessing 750 ml. arrack in a plastic bottle near Chettikulangara temple in Kannamangalam Village. Learned counsel for the appellant submitted that the appellant is no more. Learned Public Prosecutor produced a memo stating that death of the appellant was confirmed by the local Police. However, considering the statement of law in Section 394 Cr.P.C., I find that the appeal should be disposed only on merit as it involves sentence of imprisonment as well as fine.

Heard the learned Counsel for the appellant and the learned Public Prosecutor. I have perused the records carefully.

In order to establish the prosecution case, four witnesses were examined and five documents marked. D.W. 1 was examined on the side of the accused. P.W. 1 was the Preventive Officer working in the Excise Range Office, Mavelikkara. On 20.10.2001, he along with his subordinate Officers were on patrol duty. When they were proceeding through a road, they saw the accused coming from the opposite side with a bottle in his hand. On feeling suspicion, the content of the bottle was examined. On examination, it was found to be illicit arrack. The accused was apprehended for possessing the contraband. Thereafter, Ext. P1 mahazar and Ext. P2 arrest memo were prepared from the place of detection itself. The accused, the contraband and the material papers were produced before the Excise Office and handed over to P.W. 4. Testimony of P.W. 1 remains credible in spite of cross-examination.

P.W. 2 also accompanied P.W. 1 at the time of patrolling and he was a party to the detection of the offence. He also spoke about the detection of the offence, taking sample of the contraband and preparation of material documents. His testimony is in support of that of P.W. 1. P.W. 3 is an independent witness. He deviated from his previous statement and did not support the prosecution case as the way they wanted it. However, credible testimony of P.Ws. 1 and 2 would show that the deceased appellant was found in possession of the contraband as alleged by the prosecution. P.W. 4 is the investigating officer. Evidence adduced by P.W. 4 would show that he took over investigation in the morning on 21.10.2001. Crl. Appeal No. 2053/2005. He prepared Ext. P3 occurrence report. He produced Ext. P4 property list in court on 21.10.2001 itself. However, from the endorsement made on Ext. P4 property list, it is evident that the contraband articles were produced before the court for the first time only on 24.01.2001. There is no evidence adduced by the prosecution as to who was in custody of this contraband till it was produced before court. P.W. 4 has not stated anything about keeping the contraband in safe custody till it was produced before court. Apart from that, there is no forwarding note produced at the time of trial to convince that the seal said to have been affixed on the sample bottle was the same that was seen at the time of chemical analysis. Principles of law stated in Ravi v. State of Kerala (2011 (3) KLT 353) have been violated in this case by not adducing link evidence to connect the contraband with the accused and that it was sent for analysis in a tamper proof condition. Non-explanation of proper storage of the sample bottle by P.W. 4 is also fatal to the prosecution case. Therefore, in spite of the fact that the detection and the recovery of contraband from the possession of the appellant/accused is proved in this case, prosecution has to fail for non-fulfillment of essential safeguards at the time of investigation. Hence I find the conviction of the appellant for the alleged offences is bad.

In the result, the appeal is allowed. Conviction of the appellant.

Crl. Appeal No. 2053/2005 under Sections 8(2) and 55(a) of the Abkari Act in S.C. No. 269 of 2003 on the file of Additional Sessions Judge (Adhoc-II), Alappuzha is hereby set aside.

All pending interlocutory applications will stand dismissed.