Kumaran vs S.I. Of Police And Ors

This appeal is directed against the judgment dated 13.11.2006 in S.C. No.457 of 2003. The judgment was pronounced by Additional Sessions Judge

(Adhoc-I) Manjeri (for short, the court below). The appellant is the sole accused in the case. He was found guilty by the court below for an offence

punishable under Section 55 (g) of the Abkari Act, (for short ‘the Act’) convicted and sentenced to undergo rigorous imprisonment for a period

of two years and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for six months.

For easy reference, the parties to this Appeal will hereinafter referred to as the prosecution and the accused. The facts of the case relevant for

disposal of this appeal are summarised hereinbelow.

On 09.07.2002 at 8.05 p.m. the accused has found possessing 8.5 litres of wash kept for preparation of illicit arrack behind the house bearing

No.1/29 in Thanur Panchayat. Alleging that the accused has committed an offence punishable under Section 55(g) of the Act, he was arrested from

the spot. The sample was taken from the contraband and the remnant contraband as well as the sample were sealed. After concluding the

investigation, the final report chargesheeting the accused for the offence was laid before the court. On appearance of the accused, after hearing the

learned Public Prosecutor and the accused, a charge was framed based on the allegations in the charge sheet. It was read over and explained to the

accused. He pleaded not guilty and faced the trial.

On the side of the prosecution, PWs 1 to 6 were examined, Ext.P1 to P9 and MO1 were marked. The accused was questioned under Section 313

(1)(b) Cr.P.C. All incriminating circumstances put to him were denied by him. He maintained the stand of innocence. He was asked to enter on his

defence on finding that grounds are not existing to record an order of acquittal. But, he did not adduce any evidence. Court below on appreciation of

evidence found him guilty of the offence punishable under Section 55(g) of the Act and convicted him and imposed the punishment as aforesaid.

Aggrieved by the finding of guilty, order of conviction and imposition of punishment the accused is before this Court in the appeal on hand.

Sri. K.Shibili Naha, the learned counsel for the appellant has contended that there is no description in the seizure mahazar regarding affixture of seal

on the contraband and the sample taken therefrom and the nature of the seal affixed. According to him, when description is lacking in the seizure

mahazar regarding the nature of seal affixed on the contraband, the trial is vitiated and that is a ground for acquitting the accused. It is contended by

the learned counsel that though the contraband and the sample were produced before the court in the morning of 10.07.2002, the property list and the

forwarding note prepared in the case on hand were produced before the court only on 11.07.2002. According to him, production of property list and

the forwarding note before the court was delayed by one day. The learned counsel has contended that when the seizure mahazar is silent on the

nature of the sample seal affixed on the contraband and the sample, the specimen seal impression appearing in the forwarding note can only be taken

to have affixed from the office after production of the articles there. According to him in such circumstances, he is justified in advancing an argument

that the articles forwarded to the court were not the actual one seized from the spot. According to him the delay of one day occurred in forwarding

the articles, forwarding note and list of properties further supports his doubt about the identity of the articles. In the context explained by him it is the

burden of the prosecution to explain the delay, evenif it is of a single day. But the prosecution failed to explain it and therefore it cannot be said to have

proved the case against the accused in a fair manner. The learned counsel has relied on Unnikrishnan Nair V. State of Kerala [2020 (3) KHC

455=2020 (4) KLT 376] and judgment of a learned Single Judge of this Court in K.Bhaskaran Vs. State of Kerala and another (Crl.Revision Petition

No.4649 of 2006) (unreported) to fortify his contention that want of description in the seizure mahazar regarding affixture of seal and the nature of

seal is fatal to the prosecution.

This court ventured to appreciate the evidence on record to find out the merit in the contentions now raised against the prosecution. From a reading

of the seizure mahazar this Court has noticed that a narration on affixture of seal on the contraband and sample from the spot is there. True that a

description on nature of seal is lacking therein. But PW1, the Detecting Officer, examined before the court has deposed that the seal affixed on the

contraband and the sample, was their departmental seal. PW1 was not cross examined further on that aspect. Therefore, the evidence of PW1 and

the recital in Ext.P2 stand to the effect that departmental seal was affixed by the detecting officer on the contraband and the sample, from the spot

itself. The forwarding note prepared and marked in evidence as Ext.P6 also bear an impression of the sample seal claimed by the prosecution to have

affixed on the articles from the spot. PW1 and PW6, the officers taken part in the investigation were not cross examined by the defence particularly

on that aspect and therefore there is absolutely no reason to disbelieve them on their version about affixture of departmental seal on the articles from

the spot. Therefore it has come out in evidence that the departmental seal was affixed on the contraband from the spot and to evince the nature of the

seal affixed, Ext.P6 was produced before the court. This Court is convinced on a perusal of Ext.P6 that a sample seal impression was affixed thereon.

There is nothing on record to convince this Court that the nature of the sample seal affixed on the contraband from the spot and the sample seal

impression borne out from Ext.P6 are different. There is nothing on record to disbelieve PW1 on the matter of affixture of sample seal impression on

the contraband and the sample taken therefrom, from the spot. In Unnikrishnan Nair supra relied on by the learned counsel, either PW3, the officer

who conducted the investigation or PW5, the officer responsible for the production of the sample before the court failed to give evidence regarding

preparation of forwarding note. Forwarding Note also does not form part of record of the evidence adduced by the prosecution. In the description of

the container of contraband in the crime and occurrence report and the property list admittedly prepared by PW5, there is no indication that it was

sealed and labelled. In the above circumstances, that the court in the cited case has accepted the arguments of the defence that the prosecution failed

to prove that the sample produced before the court and forwarded to the laboratory for chemical analysis was not the one drawn from the contraband

seized from the spot and thereby acquitted the accused by granting the benefit of doubt. In K. Bhaskaran supra relied on by the learned counsel, PW5

has not given evidence as to the nature or description of the seal which he had affixed on the bottle containing the sample. Ext.P3 seizure mahazar is

also silent on that aspect. Evidence was not adduced by the prosecution to show that PW5 had produced the specimen of the seal in the court or that

he provided the same in the forwarding note prepared by him for sending the sample for analysis. The nature of the specimen seal provided in Ext.P6,

copy of the forwarding note was not legible. In the above context that the court has upheld the argument of the defence that the sample allegedly

drawn by PW5 from the spot and the one produced before the court and forwarded to the chemical lab for chemical analysis are not the same and

thereby held that the finding of guilt, order of conviction and sentence against the accused will not sustain. The decisions cited by the learned counsel

has no relevance in the context for the reason that the factual situations are unidentical. Therefore, this Court is declined to rely on the decisions cited

by the learned counsel.

The learned counsel canvassed that the accused being a man now reached 60 years deserves leniency in the matter of imposition of sentence. He

has urged to modify the sentence by setting aside the directions to undergo rigorous imprisonment for two years and to confine the punishment to fine

of Rs.1,00,000/-as imposed by the trial court. At this juncture, this Court has directed the learned counsel to look into the provision and to find out the

sentence liable to be imposed in a case wherein the accused was found guilty under Section 55(g) of the Act. The learned counsel has gone through

the provision and submitted that the sentence to be imposed in a case of the nature include imprisonment as well as fine. Therefore, the prayer of the

learned counsel cannot be accepted. However, considering the factum that the accused is aged 60 years and also that he is the 1st offender for the

offence concerned, this Court is inclined to modify the period of imprisonment to one year.

In the result, appeal stands allowed in part. The Judgment to the extent it imposes imprisonment for two years is modified and reduced to rigorous

imprisonment for one year. With regard to the fine amount imposed, this Court is declined to interfere with for the reason that the Statute does not

permit that. Other directions in the impugned judgment are maintained.