Prabhakaran vs State of Kerala

N.K. Balakrishnan, J.—The first accused who was convicted by Additional Sessions Judge (Fast Track-I), Palakkad is the appellant. He was sentenced to undergo R.I. for two years and to pay Rs. One lakh as fine and in default to undergo S.I. for six months. Charge sheet was laid against three accused persons. A2 and A3 who were acquitted by the trial court were the passengers in the autorickshaw driven by A1, the appellant herein. The autorickshaw was intercepted by P.W.4, the S.I. of Police and his officials on 26.10.2000 at about 5 PM on the public road at Kallekulangara. Ext.P1 seizure mahazar shows that 5 bottles measuring 750 ml each Bejois Grape Brandy with a sticker "for sale in Karnataka State only" were found in a bag kept in the rear side of the passengers'' seat. Samples were taken in two bottles. Accused were arrested then and there. The accused, seizure mahazar, arrest memo and other records were produced before the learned Magistrate on 27.10.2000 itself. After conducting investigation, charge sheet was laid against all the three accused.

P.W.1 to P.W.7 were examined and Exts.P1 to P6 were marked. M.O.1 series and M.Os.2 and 3 were also identified and marked.

The learned Additional Sessions Judge found that A2 and A3 were passengers and so benefit of doubt has to be given to A2 and A3 since it was possible that they were unaware of the liquor bottles having been kept in the rear side of the seat where the passengers are to sit. Since A1, the appellant herein did not offer any plausible explanation and since that court found that the transport or carrying of the brandy bottles was in violation of the Abkari Act, he was convicted and sentenced as mentioned above.

The learned counsel for the appellant would submit that it was possible that the bag containing liquor bottles might have been kept on the rear side of the seat by A2 or A3 and so benefit of doubt should have been given to A1. This submission is resisted by the learned Public Prosecutor who would point out that there was no case for A1 that the bag containing the liquor bottles might have been kept there by A2 and A3. On the other hand, there was a total denial by the three accused. But the evidence given by P.Ws.4 and 5 and Ext.P1 would clearly show that the autorickshaw was intercepted at the time and place as mentioned above and it was A1 who was driving the autorickshaw at that time. The evidence would also show that the bag which contained the liquor bottles was not in the seat or platform where A2 and A3 were sitting but only on the rear side of the passengers'' seat. Therefore, A1 alone could have kept the same in that portion of the autorickshaw. That apart, there was no case for A1 that he was unaware of the fact that liquor bottles were kept in the autorickshaw. Hence, considering the totality of the evidence and circumstances, the learned Sessions Judge has rightly found that accused Nos.2 and 3 were not responsible for keeping those bottles at that place.

The learned counsel for the appellant would vehemently argue that the mandatory requirement of production of the properties in court was not duly complied with by the detecting officer. Though Ext.P1 mahazar reached the court immediately on the next day, the properties were produced in court only after about two months. The property list as per which the properties were produced by the detecting officer before the learned Magistrate is not seen marked nor was any acceptable explanation offered by the prosecution with regard to the delay in production of the properties. The learned Public Prosecutor would submit that since the seizure was reported immediately on the next day itself that must be treated as due compliance of Section 36 of the Act. Though what is required u/s 36 is reporting of the seizure of the contrabands, the detecting/investigating officer cannot produce the contrabands before the court leisurely at his whim and fancy. It is pertinent to note that no explanation was offered for the delay in production of the articles mentioned above. It is also argued by the learned counsel that in Ext.P1 seizure mahazar the specimen impression of the seal is not seen affixed and as such it would create doubt that sample bottles were not sealed at the place of detection. It is true that specimen impression of the seal was affixed on the copy of the forwarding note dated 29.12.2000. As stated earlier, the property list as per which the properties were produced by the detecting officer before the learned Magistrate is not seen marked. There is no mention regarding the non-affixure of the specimen impression of the seal or label on the sample bottle and remaining liquor bottles. Therefore, the learned counsel for the appellant submits that there is no guarantee that the sample which was sent to chemical examiner was the very same sample alleged to have been taken at the time and place as stated by the prosecution. The learned counsel further submits that there is also no legal evidence to show that other liquor bottles reached the court in the same condition. Further, it is argued that there is no acceptable evidence to show under whose custody the liquor bottles were kept till the bottles were produced in court. The cumulative effect of these omissions and laches cannot be lost sight of while appreciating the evidence. Considering the totality of the circumstances, I find that the appellant is entitled to get the benefit of reasonable doubt. As such the conviction and sentence passed against him is liable to be set aside.

In the result, this appeal is allowed. The conviction and sentence passed against the appellant is set aside and he is acquitted of the offence. He is set at liberty. The bail bond executed by him will stand discharged.