Allowed

Devarajan @ Devu v. State of Kerala

Kerala HC11 Nov 2013CRL.A/11/2007

Case brief

AI extract

What is this about?

The Kerala High Court allowed a criminal appeal by the appellants convicted under the Kerala Abkari Act for possessing illicit arrack. The court set aside the conviction due to significant defects in the investigation, specifically regarding the improper collection of samples, lack of agreement on sample quantities in papers, and absence of evidence regarding the secure transfer and examination of

What did the court decide?

The judgment dated 22.11.2006 is set aside; the appellants are acquitted and the bail bond is cancelledd to set them at liberty.

Devarajan @ Devu Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2013)

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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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MONDAY, THE 11TH DAY OF NOVEMBER 2013/20TH KARTHIKA, 1935

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CRL.A.No. 11 of 2007 ( )

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AGAINST THE JUDGMENT IN SC 1555/2001 of ADDL. SESSIONS JUDGE, FAST TRACK COURT (ADHOC)-IV, TRIVANDRUM, DATED 22-11-2006

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(CP 91/2001 of J.M.F.C.-I,NEDUMANGAD)

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APPELLANT(S)/ACCUSED 1 AND 2:

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1. DEVARAJAN @ DEVU, S/O.KESAVAN KANI, VILAYIL VEEDU, ALUMKUZHI ANAD MURI, KURUPUZHA VILLAGE.

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2. JOSE, S/O.APPU NADAR, DEEPTHY MANDIRAM, THOTTUMPURAM, ALUMKUZHI ANAD MURI, KURUPUZHA VILLAGE.

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BY ADVS.SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR

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RESPONDENT(S)/COMPLAINANT:

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

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BY PUBLIC PROSECUTOR ADV.SRI.E.M.ABDUL KHADIR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.A.No.11 of 2007

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Dated this the 11^th day of November, 2013.

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J U D G M E N T

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The appellants two in numbers are accused nos.1

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and 2 respectively in S.C.No.1555/01 of the court of Additional Sessions Judge, Fast Track court (Ad hoc)-IV, Thiruvananthapuram. The challenge in this appeal is against the judgment dated 22.11.2006 in the above sessions case, as they are convicted and sentenced for the offence under section 8(1) and (2) of the Kerala Abkari Act.

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The prosecution case is that the accused were found in possession of illicit arrack for sale at the premises on the western side of the house of the 1^st accused and thereby the accused had committed the offences punishable under sections 8(1) and (2), 55(a) and (h) and 58 of the Abkari Act. On the above allegation, Crime No.43/01 was registered in the Palode police station for the

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said offences and on completing the investigation, report was filed in the court of Judicial First Class Magistrate-I, Nedumangad, and the learned Magistrate by his order dated 30.7.2001 in C.P.No.91/01 committed the case to the Sessions court wherein S.C.No.1555/01 was instituted and thereafter, eventually the case was transferred to the present trail court for disposal.

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When the accused appeared, considering the arguments of the prosecution and the defence, a formal charge was framed against the accused for the offence under section 8(1) and (2) of the Abkari Act and when the said charge was read over and explained to the accused, they denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence by examining Pws.1 to 4 and producing Exts.P1 to P7 documents and M.Os.1 to III were also identified. Rejecting the defence plea that they are implicated in the case falsely connected with a labour dispute, the trial court

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finally found that the prosecution has succeeded in proving the ingredients of the offence under sections 8(1) and (2) of the Abkari Act. On such conviction, each of them are sentenced to undergo rigorous imprisonment for one year and also sentenced them to pay a fine of `1 lakh each and in default, each of them are directed to undergo rigorous imprisonment for a further period of 6 months. Set off is allowed under section 428 of Cr.P.C. Thus, the accused therein preferred the above joint appeal challenging their conviction and sentence.

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Heard Adv.Sri.T.A.Unnikrishnan learned counsel for the appellants and Adv.Sri.E.M.Abdul Khadir, the learned Public Prosecutor for the State.

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Though the prosecution has examined altogether 4 witnesses, Pws.1 and 2, who are independent witnesses, turned hostile and therefore the prosecution is constrained to stress upon the evidence of Pws.3 and 4-the official witnesses and other connected documents, to substantiate

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their case. Thus when Pws.3 and 4 were examined, they have deposed in accordance with the prosecution allegation. According to these witnesses, on getting information about the sale of illicit arrack in the property of the 1^st accused, they proceeded to the place of occurrence and when they reached, they saw accused no.1 holding a 10 ltr. black plastic can and similarly the 2^nd accused was also seen holding a black plastic can having the capacity of 5 ltr. and a glass. According to these witnesses, on seeing the police party, the appellants/accused tried to escape from the spot but they were intercepted and on examination of the 10 ltr. can, which was held by accused no.1, they found full of liquid and similarly the can which was held by the 2^nd accused, on examination has found containing 4.5 ltrs. of liquid. According to them, the contents of both the plastic cans are identified as illicit arrack by smelling and tasting. Thus according to these witnesses, the appellants/accused were arrested from the

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spot and the contraband article and the materials were seized as per the mahazar and thereafter they returned to the police station. When PW3 was examined, he had identified M.Os.1 to III. When PW4 was examined, Ext.P4 FIR, Ext.P5 property list, Ext.P6 forwarding note and Ext.P7 chemical analysis report were marked through PW4, who on completing the investigation laid the charge. It is on the basis of the above evidence, the trial court arrived into its finding as I indicated earlier, which form basis for the conviction of the appellants/accused.

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Learned counsel for the appellants submitted that the appellants were implicated in the above case due to the extraneous consideration and falsity of the prosecution case is discernible in view of the difference in the quantity of samples said to have taken by PW4 and seen in the sample bottles as mentioned in Ext.P7 chemical analysis report. According to the learned counsel, as per Ext.P5 list of properties, though the sample taken was only 150 ml., as

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per the report of the chemical analysis, the quantity of samples shown as 180 ml. In the light of the above difference, according to the learned counsel, the findings of the court below are incorrect and liable to be interfered with and as such, the appellants/accused are entitled to get an acquittal by extending the benefit of doubt.

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On the other hand, the learned Public Prosecutor invited my attention to the deposition of PW4 and it is submitted that in Ext.P5 list of property, the quantity of samples was mistakenly noted as 150 ml. instead of 180 ml. and therefore actually there is no difference in the quantity of samples drawn by PW4 and sent for sampling as mentioned in Ext.P7 chemical analysis report. According to the learned Public Prosecutor, except about the slight difference in the quantity of the samples which already explained by PW4, there is no other defect in the prosecution case and the evidence shows that on the next day of the date of occurrence, the samples and the material

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objects were reached in the court, from where the samples sent for chemical analysis and obtained Ext.P7 report. So, according to the learned Public Prosecutor, the findings of the court below are absolutely correct and no interference is warranted.

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I have considered the contentions advanced by both sides and I have gone through the evidence and materials on record.

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Having regard to the facts and circumstances of the case and the evidence and materials on record and especially in view of the rival contentions advanced, the question that arose for consideration is whether the findings and conviction recorded by the trial court against the appellants are sustainable. As far as an Abkari offence is concerned, in view of the settled position, most of the investigation will be completed by the seizure of the contraband article and materials, and by the arrest of the appellants/accused, if the appellants/accused are available

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at the time of the seizure. In the light of the evidence and materials on record and in the light of the above settled position, according to me, in the present case it cannot be said that the prosecution has succeeded in ensuring a fair and legal investigation. According to me, the defect in the investigation and the paucity of proper evidence, has to be examined in the backdrops of the particular defence taken by the accused. The appellants/accused has got a case that they were working in a quarry owned by one Ponmani and there was a labour dispute and the 2^nd accused Jose was the leader of the Union and out of that animosity, at the instance of the said quarry owner, the police implicated the accused in this false case. I do not find any defect in the other evidence of the prosecution. But it can be seen that the contemporaneous document that relied on by the prosecution, ie., Ext.P2 mahazar, it is very strange to note that there is no whisper about the drawing of samples. In all the abkari cases, the Detecting Officer, whether they

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are Excise or Police Officials, are bound to seize the contraband article and to draw samples from the spot. Even if no sample is drawn from the spot, it is for them to make a proper request before the court requesting the court to take samples and sent the same for chemical analysis. But in the present case, as per the evidence on record, there is no proper sampling at all. It is true, in the evidence of Pws.3 and 4, they have stated that samples were drawn from the contraband article allegedly seized from the possession of the appellants, at the spot itself. In this juncture it is relevant to note that Pws.1 and 2- the independent witnesses cited and examined by the prosecution did not support the case of the prosecution that the appellants/accused were found in possession of the contraband article. So, a close scrutiny of the evidence of Pws.3 and 4 is warranted. At this juncture, the point raised by the learned counsel for the appellants appears to be relevant. Though I have repeatedly gone through Ext.P2

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seizure mahazar, there is no whisper as to whether any samples drawn from the contraband article and what was the quantity of samples drawn, what was the capacity of the bottles to which the samples were drawn and the safety measures adopted to keep the sample bottles intact as well as the preventive measures taken against tampering the samples etc. The 4^th item in Ext.P5 property list, is described as, “150 ml. അളവ�ക��ള�ന സ�മ�ള ച�ര�യ� 2 ��പ��ള .” It is not discernible whether the 150 ml. indicated therein represents the quantity of samples taken or whether the capacity of the sample bottles. However, from Ext.P7 chemical analysis report it can be understood that, each sample bottles received by the chemical examiner contain 180 ml. of clear and colourless liquid. PW4, the Detecting Officer, in chief examination has stated that, “അത�ല ന�ന� 180 ml. ച�ര�യ� വ�ത� ആ �ന�സ�ല ന�ന�� sample എട�ത�.” During the cross, he has stated that, “Sample എട�തത 180 ml. വ�തമ�ണ. M.Os. ഹ�ജര�ക�യപപ�ള 150 ml. എന�

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കത�ണ�ല�സ�ല പ�ശ��യ� എഴ�ത�യത�ണ .” Even if the above

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explanation of PW4 is accepted for a moment, still he had no explanation or no offer about the capacity of the sample bottles in which the samples were taken. The above discrepancies further complicated through the reexamination of PW4. The deposition of PW4 during his reexamination reads as follows : “ന�ങള ഹ�ജര�ക�യ sample ആപ-� F.S.L.-ല അയചത (Q). അതറ�യ�ല1. പ��ടത�യ�ല ന�ന� പവകറ

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sample എട�തയപച� എനറ�യ�ല.” The above evidence of PW4 shows that, there is no guarantee that the samples which were subjected to the chemical analysis as per Ext.P7 chemical analysis report, are the samples allegedly drawn by PW4. If the samples are drawn from the court, in that case also, there must be strict evidence as to who had drawn the samples, what was the safety measures taken to keep the samples intact and the safety measures adopted for preventing tampering of the samples etc. Moreover, on a reading of Ext.P2 mahazar, according to me, the same is

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not sufficient to inspire the confidence of the court to come into a conclusion that the said samples were prepared at the scene of occurrence, since the exact location of the preparation of the mahazar is not mentioned therein. Thus according to me, due to the above defect occurred during the investigation, particularly with respect to the drawing of samples and due to the paucity of evidence to show that the samples that were drawn from the contraband article allegedly seized from the possession of the appellants had safely reached at the hands of the chemical examiner and subjected the same for chemical examination, it cannot be said that the prosecution has succeeded in proving its case against the appellants beyond reasonable doubt.

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Having regard to the facts and circumstances involved in the case and especially in the light of the above discussion and in the light of the evidence and materials referred to above, I am of the view that, the learned Judge of the trial court ought not have convicted the appellants/

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accused but extending the benefit of doubt, they should have been acquitted. Therefore, in this appeal, by extending the benefit of doubt in favour of the appellants/ accused, the findings and the conviction recorded by the trial court are set aside.

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In the result, this appeal is allowed setting aside the judgment dated 22.11.2006 in S.C.No.1555/01 of the court of Additional Sessions Judge, Fast Track court (Ad hoc)-IV, Thiruvananthapuram, and the appellants are acquitted of all the charges levelled against them and the bail bond if any executed by them, shall stand cancelled and they are set at liberty.

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Sd/- V.K.MOHANAN, Judge

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ami/

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//True copy// P.A. to Judge

Devarajan @ Devu v. State of Kerala

Case brief

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Devarajan @ Devu v. State of Kerala

Case brief

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