Radhakrishnan @ Radha vs State Of Kerala And Anr

Appellant is the convict in S.C.No.500/2005 on the file of the Additional District Court-II, Kollam. He faced trial for offence punishable under

Section 8(2) of the Abkari Act for having illegally possessed arrack. The precise allegation against him is that, on 09.02.2000 at 6.00 p.m. while the

Preventive Officer attached to the Excise Range Office, Kollam and party were engaged in patrol duty, while proceeding along the Vellikulangara-

Poomattam road from east to west, in front of Valukunnathuveedu, house of Krishnamani, they noticed a person proceeding in the opposite direction

holding a plastic bottle of 1½ litre capacity, full of liquid. Out of suspicion, when he was intercepted and the content of the bottle was verified, it was

found containing arrack. Thus the contraband was seized under a mahazar and the appellant was arrested from the spot. Everything was done in the

presence of independent witnesses. After reaching back the office, Crime No.17/2000 of the Range office was registered under Section 8(1) and (2)

of the Abkari Act. The appellant was produced before court on the same day. After investigation, the Excise Inspector laid the charge sheet before

the Judicial First Class Magistrate-II, Kollam, where the case was taken on file as C.P.No.110/2004. Meanwhile, report of the chemical examination

was also received confirming that the appellant was carrying arrack in his possession. Since an offence triable exclusively by a Court of Sessions was

revealed, the case was committed to the Sessions Court, Kollam, from where it was made over to the trial court.

The appellant was on bail. He was defended by a counsel of his choice. After hearing counsel on both sides, when the charge was framed, read

over and explained, he pleaded not guilty.

Five witnesses were examined on the side of the prosecution. Exts.P1 to P6 were also marked. The contraband seized from him was identified and

marked as MO1. On completion of prosecution evidence, when questioned under Section 313(1)(b) Cr.P.C., he denied all the incriminating evidence

and reiterated his innocence. As it was not a fit case for acquittal under Section 232 Cr.P.C., he was called upon to enter on his evidence in defence.

However, no evidence was adduced for him. After hearing counsel on both sides, by the impugned judgment, repelling the contentions of the appellant,

the learned Additional Sessions Judge found him guilty of offence under Section 8(2) of the Abkari Act and sentenced to undergo rigorous

imprisonment for one year and to pay a fine of Rs.1 lakh, in default to undergo simple imprisonment for six months. He was also found entitled to get

the benefit under Section 428 Cr.P.C. That finding is now impugned in this appeal filed under Section 374(2) of the Cr.P.C.

I heard the learned counsel for the appellant as well as the learned Senior Public Prosecutor for the respondent State. The trial court records were

also perused.

The learned counsel for the appellant raised three-fold contentions, assailing the impugned judgment. Firstly, he pointed out that independent

witnesses have not supported the prosecution case so that the learned Additional Sessions Judge should not have proceeded to convict the appellant

basing on the interested oral testimony of PWs 3 and 4. Secondly, there is no forwarding note proved for the prosecution case. Thirdly, he submitted

that though the incident had allegedly happened on 09.02.2000, the material objects were produced before court only on 18.02.2000, after nine days,

that there is no explanation for the delay.

PWs 1 and 2 are the attestors to the Ext.P1 mahazar under which the contraband was seized from the appellant on 09.02.2000 at 6.00 p.m. from

the road in front of the residence of PW1, in Mundackal village in Kollam taluk. But both of them have denied having witnessed the occurrence or

attested the mahazar. Both were declared hostile to the prosecution and were cross-examined by the Public Prosecutor. In fact, there was nothing for

the counsel for the defence to examine them. Even though it appears that the late father of the appellant was a neighbour of PW1, he pretended

having no knowledge about the appellant. PW2, who is an autorikshaw driver has stated that the appellant had occasion to hire his autorikshaw, that

he has no other connection with him.

PW4 is the Preventive Officer who detected the case and registered the crime. He proved Exts.P1 to P6 documents. According to him, that day

while they were engaged in patrol duty and moving from east to west, in front of Valukunnathu house, the appellant was found walking in the opposite

direction carrying a bottle containing liquid; when intercepted and the content of the bottle was tested, it was found arrack; in the presence of

independent witnesses sample was collected from the contraband, it was seized under Ext.P1 mahazar, the appellant was arrested and after reaching

back the Excise office Ext.P2 occurrence report was prepared. He also produced the material objects on 18.02.2000 before the court with Ext.P5

property list; according to him, the material objects were produced before the court along with the appellant. But the court directed him to keep the

same in his safe custody. He also proved the chemical examination report marked as Ext.P6. To a specific question in cross-examination as to

whether he had produced the sample seal and the forwarding note, he answered in the negative. When the appellant was arrested, a group of men had

tried to forcibly release him from custody and that matter was reported to the police. He denied that it is a false case.

PW3 the Preventive Officer who accompanied PW4 gave a version in conformity with that of PW4. PW5 is the Range Inspector who conducted

investigation and laid the charge sheet. According to him, there is no document to show that the material objects were produced before court on

09.02.2000; till 18.02.2000 it was in the custody of PW4.

After having heard counsel on both sides and perusing the trial court records, there cannot be any doubt that there is considerable force in the latter

two contentions raised by the learned counsel for the appellant. In such cases, normally independent witnesses do not support the prosecution case.

Here it has come out that both PWs 1 and 2 are neighbours of the appellant so that the possibility of them being won over by the defence cannot be

ruled out. Even in the absence of corroboration through independent sources, if the testimony of official witnesses inspire confidence, that along with

supporting documentary evidence can be acted upon to proceed against a culprit. Here, the learned Additional Sessions Judge has relied on the oral

testimony of PWs 3 and 4 along with documentary evidence to convict the appellant. All the same, the other two grounds urged by the appellant are

really formidable.

As rightly pointed out by the learned counsel, there is no forwarding note relied on by the prosecution to say that the sample collected from the

contraband was forwarded for chemical examination. The Ext.P6 indicates that the sample contained 29.79% by volume of ethyl alcohol, that the seal

on the bottle was intact and found tallied with the sample seal provided. At the same time, a very material link evidence connecting the sample and the

Ext.P6 report is wanting in the prosecution evidence. PW3 has admitted before court that he did not provide sample seal or the forwarding note, for

sending the sample for chemical analysis. If only the sample that was allegedly collected from the possession of the appellant and the report are

correlated, the prosecution would be able to bring home the guilt. This Court has decided in umpteen number of cases that the forwarding note is a

very material piece of evidence to prove the allegation, in its absence the credibility of the prosecution has to be suspected.

Similar is the case of delay in producing the material objects before the court. Even though the offence was detected on 09.02.2000, Ext.P5

property list suggests that it had reached the court only on 18.02.2000. PW3 claimed that he had sent the item to the court on the same day when the

appellant was produced along with application for judicial remand, but the court had sent it back, directing to keep the same in his custody. But there is

only the solitary version of PW3 on this score. PW5 the Excise Inspector has no idea about the claim. Secondly and more importantly, the Ext.P5

property list makes it abundantly clear that the item was taken to the court only on 18.02.2000. If any such interim arrangement was made by the

court, that would have come on record, but the document produced by the prosecution itself belies this version. No doubt, every delay in producing

material objects before court cannot be adversely commented. But, prosecution must be able to explain the delay besides there must be satisfactory

explanation for the proper safe custody of the same. Here, not only there is no explanation for the delay, but satisfactory version is not forthcoming to

assume that the items were kept in proper custody of a responsible officer.

To sum up, there is no doubt that these two contentions raised by the learned counsel for the appellant are sufficient to doubt the credibility of the

prosecution. The appellant was convicted overlooking these material aspects. Therefore, benefit of these important lacunae have to be given to the

appellant. He is entitled to get the benefit of doubt.

The prosecution could not prove the allegations against the appellant beyond reasonable doubt and he is entitled to be acquitted. Thus, in reversal

of the finding of guilt, he is found not guilty and acquitted under Section 386(b)(i) Cr.P.C. His bail bond shall be cancelled. Fine amount, if any, realised

shall be refunded.