Allowed

Udayakumar, Convict NO.5838, Cp, Tvm. v. State of Kerala

Kerala HC8 Dec 2011CRL.A/788/2011

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal appeal challenging a conviction for possession of illicit arrack. The appellate court quashed the conviction due to significant procedural lapses, particularly the failure to draw chemical samples at the spot of seizure, discrepancies in dates and times, and lack of reliable evidence linking the analyzed samples to the seized contraband.

What did the court decide?

The judgment dated 5.2.2011 setting aside the conviction, the appellant is acquitted of all charges and set at liberty forthwith. The impugned judgment is set aside.

Udayakumar, Convict NO.5838, Cp, Tvm. Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE V.K.MOHANAN

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THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933

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CRL.A.No. 788 of 2011(C)

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-----------------------SC.1075/2008 of ADDL.SESSIONS COURT (ABKARI CASES),KOTTARAKARA CP.182/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA

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APPELLANT(S):

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------------------------

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UDAYAKUMAR, S/O.JANARDHANAN, CONVICT NO.5838, CENTRAL PRISON, THIRUVANANTHAPURAM.

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BY ADV. LAIJA GEORGE.K.[STATE BRIEF]

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RESPONDENT(S):

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--------------------------

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT. LOWSY.A.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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V.K.MOHANAN, J.

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Crl.A.No.788 of 2011

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Dated this the 8^th day of December, 2011.

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J U D G M E N T

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The sole accused in S.C.No.1075 of 2008 of the court of

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the Additional Sessions Judge (Abkari cases), Kottarakkara, is the appellant and he challenges his conviction and sentence imposed under Section 8(1) and (2) of the Abkari Act, vide judgment dated 5.2.2011 in the above sessions case.

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The prosecution case is that, the accused was found in possession of illicit arrack on 4.5.2008 at 6.30 a.m. at Kottarakkara Taluk, Neduvathoor village, Pullamala muri. On the basis of the above allegation, crime No.36 of 2008 was a registered in the Kottarakkara Excise Range office and after investigation, a report was filed based upon which the above sessions case was instituted. During the trial of the case, Pws.1 to 4 were examined from the side of the prosecution and Exts.P1 to P7 documents were marked.

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Besides the above, M.O.1, 10 ltr. of black can (two in numbers) were also identified and marked. No evidence adduced from the side of the defence. The trial court finally found that the prosecution has succeeded in proving the guilt of the accused and accordingly, he is convicted under Section 8(1) & (2) of the Abkari Act and on such conviction, he is sentenced to undergo simple imprisonment for 2 years and to pay a fine of Rs.1 lakh and in default he is directed to undergo simple imprisonment for three more months. Set off was allowed. It is the above conviction and sentence challenged in this appeal.

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As the appellant is undergoing imprisonment in pursuance to the impugned judgment, he preferred this appeal from the jail and on receiving such appeal, as ordered by this Court, the Registry has appointed Adv.Smt.Laija George K., from the panel of State brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard Adv.Smt.Laija George, learned counsel

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appearing for the appellant and Smt.Lowsy A., learned Public Prosecutor for the state.

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To substantiate the allegation of the prosecution against the appellant, the prosecution mainly depends upon the evidence of Pws.1 and 2. PW1 was the then Preventive Officer in charge of Excise Range Inspector, Kottarakkara. PW1 is the officer who detected the crime and PW2 is an Excise Guard, who accompanied PW1 at the time of the detention of the crime. According to PW1, on 4.5.2008 when he was attending the control room duty in the Excise Circle Inspector office, he received a phone message in the office that, one Udayakumar was engaged in selling illicit arrack at Kottarakkara Taluk, Neduvathoor village, Pullamala muri, and himself and party proceeded to the spot and when PW1 and party were walking along the Pullur NH road which is starting from the front side of Pullamala LPS and going towards eastern direction in Kuzhinjimala bhagam, they saw the accused, from a distance of 25 feet

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away from the front side of the house of one Aravindan, and at that time the accused was holding one black can in each of his hand and when he tried to run on seeing PW1 and party, they intercepted and the cans which were held by the accused were inspected in the presence of the witnesses who witnessed the same. According to PW1, on such inspection of each of the can which has a capacity of 10 ltrs., both the same contained full of liquid, which was identified as illicit arrack by tasting and smelling after taking the contents of the can on hands. According to PW1, the accused was arrested then and there and arrest intimation was given to the wife of the accused. According to him, the contraband article and the containers were seized after preparing a mahazar. When PW1 was examined, the prosecution has got marked Ext.P1 mahazar, Ext.P2 arrest memo and Ext.P3 arrest intimation. According to PW1, after the arrest and seizure of the contraband article, himself and party reached in the

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Kottarakkara Excise Range office and registered crime as crime No.36 of 2008 for the offence punishable under Section 8(1) and (2) of Abkari Act and registered Ext.P4 occurrence report. According to PW1, after the registration of the crime, he produced the accused as per remand application and the thondi articles were also sent to the court after preparing the thondi list. Ext.P5 is the property list. According to PW1, the property was received in the court as per T.R.No.174 of 2008 on 5.5.2008. When PW2 was examined, he had also deposed in terms of the deposition of PW1. PW3 is the Excise Range Inspector who completed the investigation and filed the report. PW4 is another official witness, who is the then thondi clerk of the committal court. When PW4 was examined, he had deposed that on 5.5.2008, he was working as a thondi clerk in the court of Judicial First Class Magistrate-I, Kottarakkara, and he had deposed that as per T.R.No.174 of 2008 dated 5.5.2008 of the committal court, two cans each having 10

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ltr. capacity with full of arrack received in the court. He had also deposed that as per the direction of the court, he had drawn samples from the above material and sent the same to chemical examination laboratory, for which a receipt has obtained. He had also deposed that the sample was drawn in the presence of the court. PW4 had confessed that he had no training in drawing samples. He had deposed that samples were taken from each can. During the cross examination, it was asked to PW4 that, “എത� ml-വ�� ക��ള�ന സ��പ�ള ��പ��ള�ല�ണ� സ��പ�ള എട�ത��- (Q). 375 ml. വ�� ക��ള�ന ��പ��ള�ല (A).” Though he had deposed that the cans were produced by the Excise Inspector and staff, he had affixed the seal of the court on the sample, no signatures or the seal of the Excise officials were affixed on the sample bottles. The prosecution has got marked Ext.P7, attested copy of the relevant entry, which was produced by PW4, in terms of the summons issued from the court. Ext.P6 is the chemical analyst's

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report, marked through PW1. M.O.1 two cans each having a capacity of 10 ltr. were identified and marked through PW4. It is the above evidence and materials formed basis for the finding and conviction recorded by the learned Magistrate of the trial court.

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The learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt but the learned Judge of the trial court erroneously convicted the appellant. In support of the above contention the learned counsel submitted that, all the four witnesses examined by the prosecution are only official witnesses and no independent witness is cited and examined. It is also pointed out by the learned counsel that though PW3 says that he had questioned CW4, who is an attestor to Exts.P1 and P2, he was not examined and no effective step is taken for the same. Another important point raised by the learned counsel is with respect to the defect in the charge framed by

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the court below. According to the learned counsel, as per the evidence of Pws.1 and 2 and as per Exts.P1 and P4 documents, the incident has taken place at 12.30 p.m. on 5.5.2008 but in the court charge it is recorded at 6.30 a.m. on 4.5.2008 and the judgment is also to that effect. It is also pointed out by the learned counsel that when the entire prosecution allegation is to the effect that the seizure was effected from the physical possession of the appellant, in the charge it is stated that the contraband article was seized when the appellant escaped after adandoning the same. It is also pointed out by the learned counsel that the evidences on record are not sufficient to prove that the materials subjected to chemical analysis by the chemical examiner is representative of the contraband article alleged to have seized from the possession of the appellant. In support of the above submission, the learned counsel took me through the deposition of PW4 who says that sample was taken in bottles having the capacity of 375 ml. but as per Ext.P7,

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what received in the chemical laboratory is only one bottle which contain only 200 ml. Thus according to the learned counsel, the evidences of the prosecution are not proper and sufficient to prove its allegation against the appellant but the learned Judge of the trial court has miserably failed to consider the above inherent defect of the prosecution. Thus according to the learned counsel, the appellant is entitled to get an acquittal.

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The learned Public Prosecutor has submitted that though no independent witness is examined, the evidence of Pws.1 to 4 have remained intact, nothing brought on record to discredit their version and therefore there is no ground to interfere with the findings of the court below. The learned Public Prosecutor has further pointed out that in Ext.P1 mahazar and Ext.P2 arrest memo, though names of independent witnesses are shown as attestors, those independent witnesses were not available at the time of the trial, as CW3 was no more and CW4 was abroad. Therefore,

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according to the learned Public Prosecutor, as long as the evidence of the prosecution witnesses, especially Pws.1 and 2, are acceptable, and as there is no infirmities or contradictions in their evidence, the trial court is correct in convicting the appellant, accepting the above evidences. Thus according to the learned Public Prosecutor, there is no ground to interfere with the order of conviction, since such findings are supported by cogent and acceptable evidence.

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I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have gone through the judgment of the trial court and also perused the evidence and materials on record. In the light of the counter arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor, especially in the light of the materials and evidence on record, the question to be considered is whether the learned Judge of the trial court is justified in his finding that the prosecution has succeeded in proving the

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case against the accused. The specific case of the prosecution is that, when PW1 was attending the control room duty in the office of the Kottarakkara Excise Range Circle Inspector, an information was received to the effect that the appellant is engaged in selling illicit arrack at Kottarakkara Taluk, Neduvathoor village, Pullamala muri. The date and time of occurrence according to the prosecution was on 5.5.2008 at about 12.30 p.m. The evidence of Pws.1 and 2 and Ext.P1 mahazar would show that though PW1 has got specific advance information that the accused was engaged in the sale of illicit arrack and though it is claimed that 20 ltr. of arrack was seized from the possession of the appellant, no sample was drawn from the spot, out of the contraband article alleged to have been seized from the possession of the appellant. No explanation is forthcoming from PW1 as to why he failed to draw samples from M.O.1 cans. The above approach of Pws.1 and 2 itself is creating reasonable doubt, especially when PW1 is

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a responsible and experienced officer. As rightly pointed out by the learned counsel for the appellant that, though some individual names are shown in Exts.P1 and P2 arrest memo, none of those persons were examined during the trial of the case. True, in the judgment it is stated that CW3 is no more and CW4 is in abroad but nothing stated by the prosecution or in the judgment of the trial court about the steps taken by the prosecution agency or the court to secure the presence of CW4. No doubt, the prosecution case can be accepted and the evidence of official witnesses can be acted upon to canvass a conviction and it is not mandatory that always the evidence of official witnesses be supported by independent evidence. But in the present case the procedure adopted by the prosecution and the evidence available on record are not sufficient to inspire the confidence of the court. As I indicated earlier, no explanation is forthcoming from Pws.1 and 2 as to why they failed to draw the sample at the spot itself, if their claim is

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correct that they seized contraband article from the possession of the appellant. It is also relevant to note that though PW4 has deposed before the trial court that he had drawn samples in the bottles having capacity of 375 ml., as per Ext.P6 chemical analyst's report, the quantity of the contraband article received in the laboratory is only 200 ml. PW4 has already confessed before the court that he had no experience in drawing the samples. Though PW4 has claimed that samples were drawn in the presence of the Presiding Officer/court, he had never deposed the proceedings adopted by him in drawing the sample. As such there is no concrete and satisfactory evidence before the court that, of the samples which were subjected to chemical analysis are the representative samples of the contraband article which allegedly seized from the possession of the appellant. PW4 never deposed that he had drawn samples from the two cans separately. He had also not deposed before the court that he had mixed the contraband items

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that contained in two separate cans together and drawn common sample. Moreover, his evidence is to the effect that he had drawn samples in the sample bottles having 375 ml. capacity but what received in the chemical laboratory is only 200 ml. The above facts, which points towards the lacuna of the prosecution, persuades me to hold that the prosecution has miserably failed to prove that Ext.P6 report is on the basis of the samples, which are representing the material objects allegedly seized from the possession of the appellant. Under the above factual scenario, the absence of independent evidence again create doubt regarding the veracity of the prosecution allegation, especially when Pws.1 and 2 failed to draw the samples from the place of occurrence itself.

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It is pertinent to note that when the case of the prosecution agency that put forwarded through the deposition of Pws.1 and 2 and Exts.P1 and P4, that the date of occurrence was on 5.5.2008 at 12.30 p.m. and the

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contraband article seized from the physical possession of the appellant, the appellant has faced a charge to the effect that the date of occurrence was on 4.5.2008 at 6.30 a.m. and the contraband article was seized by the prosecution agency when the appellant abandoned the same, when he escaped from the spot. So the conflict between the prosecution allegation and the charge framed by the court, prejudiced the accused.

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In the light of the above discussions and the materials and evidence referred to above and because of the inherent defect at the side of the prosecution, I am unable to endorse the findings of the trial court and I am of the firm view that, the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt and the appellant is entitled to get the benefit of doubt and I do so. Accordingly, the conviction recorded by the trial court is set aside.

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In the result, this appeal is allowed setting aside

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the judgment dated 5.2.2011 in S.C.No.1075 of 2008 of the court of Additional Sessions Judge (Abkari cases), Kottarakkara, and the appellant/accused is acquitted of all the charges levelled against him and he is set at liberty.

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As the appellant is acquitted of all the charges levelled against him by setting aside the impugned judgment, the appellant is entitled to get released from the jail forthwith, if he is not required in any other case. The Registry is directed to forward the gist of this judgment to the Superintendent, Central Prison, Thiruvananthapuram, forthwith, for appropriate action.

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V.K.MOHANAN, Judge

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ami/

Udayakumar, Convict NO.5838, Cp, Tvm. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Udayakumar, Convict NO.5838, Cp, Tvm. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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