Allowed

Savithri, D/O.Rajamma v. State of Kerala

Kerala HC28 Nov 2013CRL.A/1266/2005

Case brief

AI extract

What is this about?

The Kerala High Court allowed the criminal appeal filed by a convicted woman accused of possessing illicit arrack. The court set aside the trial court's conviction and sentence, acquitting the appellant due to total absence of evidence proving who drew the sample of the liquid.

What did the court decide?

The judgment of the Additional Sessions Judge convicting the appellant is set aside; the appellant is acquitted and set at liberty.

Savithri, D/O.Rajamma Vs State of Kerala — Cheque Dishonour | 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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THURSDAY, THE 28TH DAY OF NOVEMBER 2013/7TH AGRAHAYANA, 1935

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CRL.A.No. 1266 of 2005 (F)

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AGAINST THE ORDER/JUDGMENT IN S.C.No.1795/2001 of ADDL. SESSIONS COURT, FAST TRACK (ADHOC)No.II, TRIVANDRUM DATED 18-07-2005

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APPELLANT: ACCUSED :

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SAVITHRI, D/O.RAJAMMA, KAITHARAKUZHI VEEDU, KEEZHAI KONAM, NELLANADU VILLAGE.

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BY ADVS.SRI.PREMAKUMARAN NAIR

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SRI.R.T.PRADEEP

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SRI.V.VIJULAL

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RESPONDENT : COMPLAINANT :

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THE STATE OF KERALA,

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REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.1266 of 2005

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Dated this the 28^th day of November, 2013

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JUDGMENT

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The sole accused in S.C.No.1795 of 2001 of the court of

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the Additional Sessions Judge, Fast Track (Adhoc) No.II, Thiruvananthapuram, who is a lady, preferred this appeal aggrieved by the judgment dated 18/7/2005 in the above sessions case as she is convicted and sentenced for the offence under Section 58 and 8(1) & (2) of the Kerala Abkari Act.

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The prosecution case is that, at 12^{' o} clock noon on 6/11/1999, while on patrol duty along with Excise party, PW.3Preventive Officer, found a lady coming from their opposite direction with a black can in her right arm. On seeing the Excise party she was puzzled and attempted to turn back and retreat. On suspicion she was intercepted and on examination of the liquid contained in the can, in the presence of witnesses, by smelling and tasting, it was convinced that the same as arrack. The witnesses were also made to convince the said

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Crl.A.No.1266 of 2005

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fact. On questioning, she disclosed her identity as Savithri D/o.Rajamma, 38 years, Kaitharakuzhi house in

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Keezhayikonam muri, Nellanadu village. Hence she was arrested and the can found in her possession was taken into custody after sealing the same and pasting the label containing the name of the accused, witnesses, and PW.3. Thus, according to the prosecution the accused has committed the offence punishable under Section 58 and 8(1) & (2) of the Kerala Abkari Act.

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During the trial of the case a formal charge was framed against the accused for the offence punishable under Section 58 of the Kerala Abkari Act, which she had denied and pleaded not guilty when the same was read over and explained to her, pursuant to which the prosecution adduced its evidence by examining PWs.1 to 5 and produced Exts.P1 to P5. MO.1 can was also identified by the witnesses. The trial court finally held that the accused committed the offence under Section 58 of the Kerala Abkari Act. Accordingly, she is found guilty and convicted thereunder. On such conviction the accused is

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Crl.A.No.1266 of 2005

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sentenced to undergo rigorous imprisonment for 1 ½ years and also sentenced her to pay a fine of Rupees One lakh and in default of payment of fine, she is directed to undergo simple imprisonment for a period of three months. Set off is allowed. It is the above finding and order of conviction and sentence that are challenged in this appeal.

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Heard Sri.R.T.Pradeep, the learned counsel for the appellant and Sri.N.Suresh, the learned Public Prosecutor for the State.

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To prove the occurrence though the prosecution has examined an independent witness, namely, PW.1, he turned hostile towards the prosecution though in Ext.P1 mahazar he admitted his signature. To prove the detection of the crime and seizure of the contraband article and arrest of the accused the prosecution has examined PWs.2 and 3 who were, then working as Preventive Officers attached to Vamanapuram Excise Range and they deposed that while they were on patrol duty and at about 12^'0 clock in the noon they arrested the accused with MO.1 can containing about 2½ litres of arrack

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Crl.A.No.1266 of 2005

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from the Keezhayikonam - Karinjathi road in front of the R.C.Church at Vandippura mukku. They have also deposed about the seizure of the contraband article and arrest of the accused and according to them an elaborate mahazar was prepared for the seizure and arrest, which is identified and marked as Ext.P1. According to PWs.2 and 3, on completing the proceedings of the seizure and the arrest of the accused, they returned to the Excise Range office and thereafter prepared crime and occurrence report, a property list and a forwarding note and produced the accused as well as the contraband article before the court. Thus, when PW.2 was examined besides Ext.P1 mahazar, he had also identified Ext.P2 occurrence report, Ext.P3 property list and Ext.P4 forwarding note. PWs.2 and 3 have also identified MO.1 Can. The further investigation was conducted by PW.4 and finally PW.5, on completing the investigation laid the charge. Ext.P5 chemical analysis report is marked through PW.5. It is on the basis of the evidence and materials the trial court found in favour of the prosecution and against the appellant and

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convicted her for the offence under Section 58 of the Kerala Abkari Act.

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The learned counsel for the appellant, among other contentions, vehemently submitted that the prosecution has miserably failed to prove that what allegedly seized from the possession of the accused is illicit arrack in terms of the prosecution since there is absolutely no evidence towards the sampling even though the sample was drawn at the instance of the court. In support of the above contention the learned counsel placed reliance upon the decision of this Court reported in Nalinakshan Vs. State of Kerala [2012(4) KHC464] . The learned Public Prosecutor fairly conceded that in the present case none of the court staff, who drawn the sample is cited and examined though Ext.P5 chemical analysis report available on record.

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I have carefully considered the submissions made by the learned counsel for the appellant and the learned Public Prosecutor and I have gone through the evidence and materials on record.

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Crl.A.No.1266 of 2005

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In view of the contentions advanced and in the light of the available evidence and materials on record, the question to be considered is, whether the finding and conviction recorded by the trial court are sustainable. In the decision relied on by the learned counsel for the appellant a learned Single Judge of this Court has held “there is no evidence regarding the taking of sample and the destruction of the contraband. Who took the sample, when took and when it was forwarded to the chemical examiner are not at all borne out by the evidence. Neither any witness was examined regarding the taking of the sample or any report of any staff of the court regarding the compliance of the order of the court is brought in evidence. In effect, there is nothing to show that the sample was taken from the liquid contained in MO1 or that Exhibit P5 is relating to the contraband seized by PWs.1 and 4. In the above circumstance, I am not inclined to give any reliance to Exhibit P5 and to come to a conclusion of guilty.” According to me, the above decision squarely applicable in the present case in the light of the facts and circumstances and the

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evidence and materials on record in the case on hand. In the present case also sampling was allegedly conducted at the instance of the court. But it is relevant to note that, different from the case cited supra, in the present case no order of the learned Magistrate is produced. No staff of the court, who had drawn the sample is seen examined. So, absolutely there is no evidence as to who took the sample, what was the quantity taken towards sample, what was the safety measures taken by such person to ensure such correct and proper result on chemical analysis of the sample and the precautionary measures taken to keep the samples in tact and to prevent tampering of the same, etc. So, it cannot be said that the prosecution has succeeded in proving its allegation against the appellant that she was found in possession of illicit arrack and no evidentiary value can be attached to Ext.P5 chemical analysis report in the absence of any such link evidence about the drawing of sample.

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In the light of the above discussion and the evidence and materials on record, I am unable to sustain the finding and

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Crl.A.No.1266 of 2005

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conviction recorded by the trial court and accordingly the same are set aside.

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In the result, this appeal is allowed setting aside the judgment dated 18/7/2005 in S.C.No.1795 of 2001 of the court of the Additional Sessions Judge, Fast Track (Adhoc) No.II, Thiruvananthapuram and the appellant is acquitted of all the charges levelled against her and the bail bond, if any, executed by her stands cancelled and she is set at liberty.

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V.K.MOHANAN, JUDGE

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skj

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True copy P.A. to Judge

Savithri, D/O.Rajamma v. State of Kerala

Case brief

What is this about?

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Savithri, D/O.Rajamma v. State of Kerala

Case brief

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What did the court decide?

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