Allowed

Unni,S/O. Kunjukunju v. State of Kerala

Kerala HC11 Nov 2013CRL.A/19/2007

Case brief

AI extract

What is this about?

In criminal appeal against conviction for possession of arrack under Section 55(a) of Kerala Abkari Act, the High Court set aside conviction. The Court held that prosecution failed to establish a chain of custody due to absence of forwarding note, seal impressions in seizure memo, and glaring discrepancies regarding sampling quantities by official witnesses, invoking the benefit of doubt principle

What did the court decide?

Appellant acquitted of all charges; previous judgment dated 19/12/2006 set aside; bail bond cancelled and appellant set at liberty.

Unni,S/O. Kunjukunju Vs State of Kerala — Corruption | 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. 19 of 2007 (B)

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AGAINST THE ORDER/JUDGMENT IN SC.No.262/2002 ON THE FILE OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE (ABKARI), KOTTARAKKARA DATED 19/12/2006

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AGAINST THE ORDER/JUDGMENT IN CP.No.112/2000 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOTTARAKKARA

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APPELLANT/ACCUSED No.2::

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UNNI, S/O.KUNJUKUNJU, AKHIL BHAVAN, PAVITHRESWARAM MURI, PAVITHRESWARAM VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT.

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BY ADV. SRI.M.V.THAMBAN

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RESPONDENT/COMPLAINANT::

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STATE OF KERALA, REPRSENTED BY

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THE SUB INSPECTOR OF POLICE, EZHUKONE POLICE STATION, NOTICE TO WHOM MAY BE SERVED ON THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR 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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V.K.MOHANAN, J.

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Crl.A.No.19 of 2007

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Dated this the 11^th day of November, 2013

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JUDGMENT

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The above appeal is directed against the judgment dated 19/12/2006 in S.C.No.262 of 2002 of the court of the Additional Sessions Judge (Abkari), Kottarakkara as the appellant, who is the accused in the above Sessions case, is aggrieved by his conviction and sentence imposed on him for the offence under Section 55(a) of the Abkari Act.

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The prosecution allegation is that, on 13/10/1998 at about 11.30 A.M. the first accused was found in possession of a glass tumbler and A2/the appellant herein was found in possession of 9 litres of arrack in a 10 litre black Can for sale, in the coconut garden owned by one Sreenivasan and thus the accused has committed the offence punishable under Section 55(a) & (i) of the Abkari Act. On the above allegation, Crime No.280 of 1998 was registered in the Ezhukone Police Station

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and on completing the investigation a report was filed in the Judicial First Class Magistrate Court-I, Kottarakkara and the

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Crl.A.No.19 of 2007

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learned Magistrate by his order dated 09/10/2000 committed the case to the Sessions Court where S.C.No.262 of 2002 was instituted and eventually the case was transferred to the present trial court for disposal. When the accused two in numbers appeared before the trial court, considering the argument of the prosecution as well as the defence, a formal charge was framed against them for the offence punishable under Section 55(a) & (i) of the Abkari Act and the accused denied the charge when the same was read over and explained to them. Resultantly the trial was proceeded further, during which PWs.1 to 5 were examined and Exts.P1 to P5 were produced from the side of the prosecution and MO.1 Can was identified as material objects. Towards the conclusion of the trial, the learned Judge of the trial court has found that the prosecution has succeeded to prove the case under Section 55 (a) of the Abkari Act against the second accused and there is no evidence to show that A2 conducted sale of arrack. As there is no evidence to connect A1 to the offence alleged, A1 found not guilty of the offence under Section 55(a) & (i) of the

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Crl.A.No.19 of 2007

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Abkari Act and he is accordingly acquitted under Section 235 of Cr.P.C. Whereas A2 is found guilty under Section 55(a) and he is convicted thereunder, but he is acquitted for the offence under Section 55(i) of the Abkari Act. On such conviction, A2the present appellant is sentenced to undergo rigorous imprisonment for three years and to pay fine of `1,00,000/- and in default of payment of fine, he is directed to undergo rigorous imprisonment for three more months. Set off is allowed under Section 428 of Cr.P.C. Challenging the above finding and order of conviction and sentence the second accused therein preferred this appeal.

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Heard Sri.M.V.Thamban, learned counsel for the appellant and Sri.E.M.Abdul Khadir, the learned Public Prosecutor for the State.

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Though altogether 5 witnesses were examined to prove the occurrence and the seizure of the contraband article and arrest of the accused, the prosecution was constrained to rely upon the evidence of PWs.3 and 4-the official witnesses since two independent witnesses, who were examined as

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PWs.1 and 2 turned hostile. Thus, when PWs.3 and 4 were examined they have deposed that in pursuant to the information received by PW.5 on 13/10/1998 that the appellant and his brother first accused engaged in the sale of arrack in the property owned by Sreenivasan they proceeded to the scene of occurrence and on reaching there they found the accused standing in the above property and at that time A2 was holding MO.1 jerry Can and A1 was with a drinking glass. According to Pws.3 and 4 on seeing them the first accused ran away with the glass tumbler but A2 before escaping from the scene of occurrence was intercepted with MO.1 jerry can. Thus on inspection of the jerry Can in the presence of the witnesses, the content therein identified as arrack by testing and smelling. The total quantity of MO.1 Can content was 9 litres of arrack. So, according to PWs.3 and 5, 200 ml. of samples were drawn from the same and thereafter the samples as well as the residue with the Can were seized as per mahazar and A2 was arrested then and there. According to PWs.3 and 5, on completing the proceedings, they returned to the Police

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Crl.A.No.19 of 2007

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Station and registered Crime No.280 of 1998 and the contraband article as well as the samples were produced before the court as per the property list prepared by PW.5. Thereafter the samples so produced got examined through chemical examiner and thus obtained a certificate. When PW.3 was examined he had deposed as I indicated and he had identified MO.1 Can. When PW.5 was examined Ext.P3 arrest memo, Ext.P4 F.I.R. and Ext.P5 property list were marked through him. The investigation was verified and charge was laid by PW.4 and when he was examined Ext.P2 chemical analysis report was marked through him. As I indicated earlier, though PWs.1 and 2 were turned hostile PW.1 has admitted his signature in mahazar and therefore Ext.P1 mahazar was marked through him. It is on the basis of the above evidence and materials the trial court found that A2 is guilty for the offence under Section 55(a) of the Abkari Act.

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The learned counsel for the appellant vehemently submitted that the samples and search were not properly done and there is several discrepancies in the evidence of PWs.3

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Crl.A.No.19 of 2007

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and 5. It is also the contention of the learned counsel that no forwarding note is filed and produced and in the absence of any specific seal, according to the learned counsel Ext.P2 cannot be pressed into service to connect the accused with the alleged offence. It is also the contention of the learned counsel that the appellant/the second accused was arrested from his house by the police, who reached their house in search of his brother, who is none other than A1 in the present case. Therefore, according to the learned counsel the prosecution has miserably failed to prove its case beyond reasonable doubt.

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Per contra the learned Public Prosecutor submitted that except the failure on the part of the prosecution in filing and producing a forwarding note all other part of the prosecution case are in tact and the evidences are also without any infirmities or legal defect and therefore according to the learned Public Prosecutor, the trial court is correct in its finding and convicting the appellant. According to the learned Public Prosecutor, though the forwarding note is not marked, such a request was already made before the court as

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Crl.A.No.19 of 2007 :-7-:

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discernible from the evidence of PW.5 and when the other evidence and materials are acceptable, the non-filing or marking of forwarding note is not a ground to disbelieve and discard the prosecution case. Therefore, according to the learned Public Prosecutor the appeal is devoid of any merit and liable to be dismissed.

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I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor and I have gone through the evidence and materials on record.

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In the light of the rival contentions and having regard to the facts and circumstances involved in the case particularly in view of the available evidence and materials on record, the question to be considered is, whether the conviction recorded by the trial court against the appellant is sustainable. In the present case, as I indicated earlier, PWs.1 and 2, who are the independent witnesses cited and examined, turned hostile towards the prosecution. Therefore, a duty is cast upon the court to carefully scrutinize the evidence of the

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Crl.A.No.19 of 2007

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official witnesses and to ensure that their evidences are free of

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any doubt, contradictions or infirmities, so as to believe the same.

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A learned Judge of this Court in the decision in Gopalan Vs. State of Kerala [2012 KHC 812] has held that, the prosecution should not rest content without producing relevant documents and not following procedure correctly. In the above reported case there was no evidence about the labelling of the sample bottle. Another aspect of that case is that specimen impression of the seal on the seizure and the property list were absent and no forwarding note was marked. The investigating officer in that case has confessed that he did not see the seal alleged to have been used to seal MO.1 and the sample bottle, who is bound to verify all such matters. After observing that graver the crime, greater should be the degree of proof required, this Court has held that, the prosecution should not have rest content without producing the relevant documents and not following the procedure correctly and there is no document to show what was the seal

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Crl.A.No.19 of 2007

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used by PW.3 to seal the sample and MO.1 and considering all such aspects the court said that the accused is entitled to get the benefit of reasonable doubt.

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Having regard to the similarity of the facts and circumstances involved in the present case with the reported case, I find no reason to take a different view. In the present case though in Ext.P1 mahazar recorded that material objects and samples were sealed there is no description as to what are the steps taken to keep the samples in tact. Ext.P1 mahazar does not contained the specimen impression of the seal. There is no description in Ext.P1 mahazar about the seal affixed. In Ext.P5 property list also there is no description about the seal affixed and the same does not contained any specimen impression of the seal already affixed. In the evidence of PWs.3 and 5 also there is no whisper about the seal affixed on the sample as well as on the material objects allegedly seized. In this juncture it is also relevant to note that, when Ext.P2 chemical analysis report shows that the sample bottle which they received, containing 200 ml. of clear and colourless

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Crl.A.No.19 of 2007

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liquor, PW.5 the detecting officer, who claimed to have drawn the sample categorically stated before the court during his chief-examination itself that he had drawn 250 ml. arrack as sample. No explanation is offered by the prosecution for the difference in the quantity seen in the sample bottle. It is for the prosecution to explain, how the sample bottle received by the chemical examiner, contained the quantity of sample only 200 ml., particularly when PW.5 had drawn 250 ml. liquid.

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PW.3 has no case that the label was affixed on the sample or on the other material objects. During his crossexamination his deposition is to the effect that :-

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“Sample-ല�� കന�സ�ല�� സ�ക�കള ഒപ�ട label പത�ച��ന� അറ�യ�ല .”

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The investigating officer PW.4 has not stated anything about the labelling on the sample or on the material objects. During the cross-examination his deposition is to the effect that :-

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“സ#തന% സ�ക�കള MOS-ല ഒപ�ട Label പത��ല �ന� മനസ�ല�ചയ� (Q) Label പത��0 എന�ണ എന4 വ�ശ#�സ�.”

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Crl.A.No.19 of 2007

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But PW.5 has stated nothing about the affixing label on the material objects or on the sample bottle. So in the evidence of PW.3, PW.4 and PW.5, who are official witnesses there is glaring discrepancies.

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It is also relevant to note that, though PW.3 has present at the time of the alleged seizure, he has not stated about the seal affixed either on the material objects or on the sample. As I indicated earlier, though PW.5 said that he had sealed the sample and the material objects, no description is given about the seal used. The investigating officer though claimed that he had verified the investigation, he has nothing stated in the chief-examination about the seal said to have been affixed by PW.5. During cross-examination PW4 had stated that:-

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“Sample-ല പത�� seal-ന4 വ�വരണ� ചരഖകള�ല പറഞ�ട�ല . ( Q) ശര�യ�ണ. Forwarding not e-ല അത�ന4 specimen നലക�റ�ണ�. Station seal ആണ സ�ധ�രണ പത�ക�റ�ളത.”

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So, even though the prosecution has claimed seal is affixed on the sample as well as on the material objects, the further evidence regarding the seal affixed, the description of such seal, etc. are conspicuously absent. No specimen seal impression is provided in Ext.P1 mahazar as well and there is no description of the seal in the mahazar also. In the present case also no forwarding note is produced and marked. The investigating officer did not verify those facts. In the light of the paucity of evidence about the seal affixed and in view of the contradictions with respect to the labelling, according to me, in the present case, forwarding note which contained the sample seal is a vital document to prove the case of the prosecution since the same would be a link evidence to connect the accused with the alleged offence. But there is no such link evidence, namely the document-forwarding note. So, according to me, the endorsement contained in Ext.P2 chemical analysis report that the seal on the bottle was in tact and found tallied with the sample seal provided is absolutely baseless and against the real facts since there is no evidence

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to show that the sample seal is provided to the chemical examiner.

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In the light of the above discussion and the evidence and materials referred to above, according to me, though the evidence of the prosecution with respect to the alleged detection of the crime and arrest of the accused are in tact, the crucial evidence to connect the accused with the allegation that he is found in possession of the contraband article, namely, illicit arrack, there is no link evidence due to the absence of forwarding note. Therefore, in view of the decision cited supra the present case also the prosecution has miserably failed to prove its case beyond reasonable doubt especially when the evidence adduced by the prosecution not having the standard and degree when compared with the rigor of the punishment and the seriousness of the offences. Therefore, the findings and the conviction recorded by the trial court against the appellant are set aside.

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In the result, this appeal is allowed setting aside the judgment dated 19/12/2006 in S.C.No.262 of 2002 of the court

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of the Additional Sessions Judge (Abkari), Kottarakkara and the appellant is acquitted of all the charges levelled against him and the bail bond, if any, executed by him stands cancelled and he is set at liberty.

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V.K.MOHANAN, JUDGE

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skj

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True copy

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P.A. to Judge

Unni,S/O. Kunjukunju v. State of Kerala

Case brief

What is this about?

What did the court decide?

Unni,S/O. Kunjukunju v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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