Allowed

Satheeesan v. State of Kerala

Kerala HC8 Nov 2013CRL.A/1997/2005

Case brief

AI extract

What is this about?

In a criminal appeal alleging offences under the Abkari Act, the Single Judge allowed the appeal, quashed the conviction, and acquitted the appellants due to insufficient proof of identity, failure to prove possession of the shop, and absent satisfactory explanation for a six-month delay in producing material objects.

What did the court decide?

The appeal allowed; conviction set aside; appellants acquitted; bail bond cancelled; appellants set at liberty.

Satheeesan Vs State of Kerala — Narcotics (NDPS) | 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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FRIDAY, THE 8TH DAY OF NOVEMBER 2013/17TH KARTHIKA, 1935

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CRL.A.No. 1997 of 2005 ( )

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AGAINST THE JUDGMENT IN SC 421/2003 of ADDL.SESSIONS COURT (AD HOC)-II, THODUPUZHA, DATED 21.10.2005 (CP 139/2000 of J.M.F.C. COURT,NEDUMKANDAM)

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APPELLANT(S)/ACCUSED.:

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1. SATHEESAN @ MONACHAN, S/O.SUKUMARAN, PAYIKKADU VEEDU, ERATTAYAR KARA, KALKOONTHAL VILLAGE UDUMBANCHOLA TALUK.

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2. RAJAN, S/O.KRISHNAN, PLANTHOTTATHIL VEEDU PARAKKADAVU KARA, KARUNAPURAM VILLAGE UDUMBANCHOLA TALUK.

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BY ADVS.SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH

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RESPONDENT(S)/COMPLAINANT.:

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STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, UDUMBANCHOLA, REP. THROUGH THE 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 08-11-2013, 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.1997 of 2005

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Dated this the 8^th day of November, 2013.

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J U D G M E N T

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The appellants are accused nos.1 and 2 in S.C.No.421/03 of the court of Additional Sessions Judge (Ad hoc)-II, Thodupuzha and in this appeal, they challenges the judgment dated 21.10.2005 in the above Sessions case, as they are convicted and sentenced for the offence under section 55(a) of the Abkari Act and in addition to that, the 2^nd accused is also convicted and sentenced for the offence under Section 64(A) of the Abkari Act.

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The prosecution allegation is that, at about 1 p.m. on 28.4.1999, in a building bearing No.KP VI/431 in Karunapuram Panchayat belonged to accused no.2, accused no.1 was found in possession of 5 ltrs. of rectified spirit, 4 ltrs. of arrack and coloured liquor in bottles for sale and thereby, the accused had committed offences

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punishable under sections 8(1) and 8(2), 55(a) and 64(A) of the Abkari Act. Accordingly, Crime No.15/99 was registered in the Udumbanchola Excise Range. On completing the investigation, a formal report was filed before the court of Judicial First Class Magistrate-Nedumkandam and the learned Magistrate subsequently by his order dated 24.9.2003 in C.P.No.139/00 committed the case to the Sessions court, where S.C.No.421/03 was instituted and eventually the same was made over to the present trial court. Thus, when the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against them for the offences punishable under sections 55(a), 8(1) and (2) and 64(A) of the Abkari Act and when the same read over and explained to the accused, they denied the same, which resulted in the further trial of the case, during which, Pws.1 to 8 were examined and Exts.P1 to P8 documents were produced and M.Os.1 to 19 series were identified as material objects from the side of the prosecution. From the side of the defence, Exts.D1 to

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D4 documents were produced and DW1 was also examined. The trial court finally found that the evidence adduced by the prosecution shows that the building bearing No.KP VI/431, from where the contraband articles were seized, belonged to accused no.2 and that the accused no.1 who was handling the same was found running away from the building after locking the door on seeing the Excise men and hence accused no.1 by his act has committed the offence punishable under section 55(a) of the Abkari Act and accused no.2 has also committed the offences under sections 55(a) and 65(A) and accordingly they were convicted thereunder. On conviction of accused nos.1 and 2, for the offence under section 55(a), each of them are sentenced to undergo rigorous imprisonment for 3 years and each of them are further sentenced to pay a fine of 1 lakh and in default, each of them are directed to undergo rigorous imprisonment for 6 more months. In addition to the above, accused no.2 is sentenced to pay a fine of 25,000/- for the offence under section 65(A) of the

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Abkari Act and in default, he is directed to undergo rigorous imprisonment for 6 months. Challenging the above finding of the court below and the conviction and sentence recorded against the accused, they preferred this joint appeal.

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I have heard Adv.Sri.C.K.Vidyasagar, the learned counsel for the appellant and Adv.Sri.E.M.Abdul Khadir, the learned Public Prosecutor for the State.

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The prosecution case is that while PW1, the then Excise Inspector of Udumbanchola Excise Range, was conducting patrol duty at about 12 noon on 28.4.1999, he got information that illicit arrack was being sold in the building bearing No.KP VI/431 of the Karunapuram Panchayat and according to him, after preparing the search memorandum, himself and party were proceeded to the place where the above building was located. According to the prosecution, on seeing the Excise party, accused no.1 ran away from the building after locking the door and after getting the assistance of the Village Officer of

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Karunapuram Panchayat village and a blacksmith from the locality, the door of the building was opened and thereafter inspected the shop room. Thus, a 5 ltr. can containing rectified spirit and another 5 ltr. can containing 4 ltrs. of arrack were found on the desk in the building. It is also the case that coloured liquor was seen in two 375 ml. bottles and two 180 ml. bottles. According to the prosecution, in a wooden box placed on the floor, 24 soda bottles and in 4 other wooden boxes 96 empty soda bottles were found. Besides the above, the prosecution party has also detected certain other material objects connected with the sale of illicit liquor. Thus the samples were collected from the rectified spirit and arrack and also from the coloured liquor. According to PW1, the Detecting officer, he had prepared Ext.P2 mahazar recording the entire procedures adopted by him, starting from the opening of the shop room and the seizure effected, samples drawn etc.

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Thus when PW1 was examined, Ext.P1 search memorandum, Ext.P2 mahazar, Ext.P3 crime and

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occurrence report etc. were marked through him. PW2 is the then Village Officer who assisted the Excise Officials who opened the shop room. PW3 is the then Secretary of Karunapuram Panchayat who issued Ext.P4 ownership certificate with respect to the building No.KP VI/431. The two independent witnesses, namely Pws.4 and 5 who were attestors to Ext.P2 mahazar, when examined, they turned hostile towards the prosecution.

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PW6 is the then Excise Inspector who was one among the raiding party and according to him, after the seizure, the parties were returned to the Excise Range office where he registered an occurrence report and prepared property list and forwarding note, and thus produced the material objects as well as the samples before the court and requested the court to sent the sample for chemical analysis and thus obtained a chemical analysis report. Thus during the examination of PW6, Ext.P5 occurrence report, Ext.P6 property list, Ext.P7 forwarding note and Ext.P8 chemical analysis report were marked

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through him. At the time of examination of PW6, the defence has also got marked Ext.D1 series, Ext.D2 will deed and Ext.D3 death certificate.

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PW7 is the then Excise Inspector who completed the investigation and laid the charge. PW8 is a loyal witness of the prosecution who was cited and examined to prove the inspection conducted by PW1 and the seizure effected from the shop room of accused No.2.

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As I indicated earlier, when DW1 was examined, Ext.D4 rent agreement dated 1.10.1998 was marked through him by the defence to show that during the relevant time, the shop room in question was rented out to one Thiruppathy. It is on the basis of the above referred evidence and materials, the trial court convicted the appellants.

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Learned counsel for the appellants vehemently submitted that though the alleged seizure was effected on 28.4.1999, the material objects as well as the samples were produced before the court only on 14.10.1999 and there

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was a delay of more than 6 months, for which, there is no explanation. According to the learned counsel, the entire case was registered against the appellants due to previous animosity maintained by the Excise officials against the appellants, since the 2^nd accused had initiated criminal proceedings against the Excise Officials. It is also the contention of the learned counsel that during the relevant time, the property and the shop room in question were within the absolute ownership and possession of the father of accused no.2, particularly in view of Ext.D2 will dead. It is also the contention of the learned counsel that the identity of accused no.1 is not proved by the prosecution and hence the trial court is not correct in its finding and convicting the appellants.

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On the other hand, the learned Public Prosecutor submitted that the evidence of Pws.1, 6 and 8 coupled with the contemporary documents like Exts.P1, P2 and other documents would clearly shows that the contraband articles were seized from the shop room, which is in the possession

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of accused no.2, and accused no.1 was found in possession of the contraband articles. It is also the contention of the learned Public Prosecutor that PW6 has explained the delay that occurred in producing the material objects before the court which according to the learned Public Prosecutor, is only reasonable and natural, and the court below accepted such explanation. Therefore, according to the learned Public Prosecutor, the trial court's finding and order of conviction requires no interference.

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I have carefully considered the contentions advanced by the learned counsel for the appellants and the learned Public Prosecutor and I have perused the evidence and materials on record.

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Having regard to the facts and circumstances involved in the case and in the light of the evidence and materials on record, particularly in view of the rival contentions advanced, the question to be considered is whether the conviction recorded by the trial court against the appellants is sustainable. As per the admitted case of

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the prosecution, the accused was not arrested from the shop room while they were in the alleged possession of the contraband articles, allegedly seized from the shop room which belonged to accused no.2. It is also the case of the prosecution that accused no.2 was implicated in the crime as he is the owner and in possession of the shop room in question. Therefore, according to me, the further question to be considered is whether the prosecution has succeeded in proving the above allegation against the appellants/ accused. Pws.1 and 6 have no claim that they have got any prior acquaintance with the first accused who allegedly ran away from the shop room after locking the door. Subsequently, the 1^st accused was not arrested at any point of time prior to 12.5.1999-the date on which the accused surrendered before PW6 on the basis of the order issued by this Court under section 438 of Cr.P.C. Pws.4 and 5, the independent witnesses, cited by the prosecution had turned hostile. So, to prove the identity of the accused, the only evidence available is that of the deposition of PW8. It is

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true, PW8 has deposed that he had seen accused no.1 ran away from the shop room of accused no.2. But the above version of PW8 requires close scrutiny in view of the particular facts and circumstances of the case. At the outset, it is to be noted that PW8 was once a tenant of the father of accused no.2. His wife was also a witness in the criminal proceedings initiated by the local police against the Excise Officials connected with Ext.D1 series. In this juncture it is relevant to note that, even according to PW8, he reached in the shop room in question belatedly and when he reached, there were more than 100 people. According to him, he came to know about the Excise Officials on hearing the sound of stopping of the vehicle and when the people gathered there. So, the claim of PW8 that he had seen the 1^st accused ran away from the shop room cannot be believed. In this juncture it is also relevant to note that as per Ext.D4 rent agreement dated 1.10.1998,

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the shop room in question was leased out to one Thiruppathi. So, the attempt made by the defence is to

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show that the shop room in question was in possession of the said Thiruppathi. It is true, when DW1 was cross examined, certain facts were brought on to show that Ext.D4 is not a genuine one. However, according to me, the defence has succeeded in probabilising a case that, the shop room in question was given on rent to the said Thiruppathi. In the above circumstances, according to me, in the absence of clear and clinching evidence to show that the person who ran away from the shop room was accused no.1, according to me, the prosecution case cannot be believed to implicate accused no.1 in the above crime.

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Similarly, as I indicated earlier, the prosecution has no case that accused no.2 was present at the time of alleged seizure of the contraband article. The prosecution want to implicate accused no.2 in the above crime on the basis of the fact that accused no.2 was the owner of the shop room in question. To prove the above fact, the prosecution has examined PW3-the then Panchayat Secretary of Karunapuram Panchayat, who issued Ext.P4

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ownership certificate of the building No.KP VI/431. Now, the question to be considered, particularly in the light of the prosecution allegation, is that, whether accused no.2 was in possession of the shop room in question or not. Even if it is admitted for the sake of argument that, accused no.2 was the owner of the shop room, that necessarily need not mean that he is in the physical possession of the above shop room, since in the present case by examining DW1 and producing Ext.D4 rent agreement, the defence could be succeeded in probabilising the case that, at the relevant point of time the shop room was leased out to one Thiruppathy. It is also relevant to note that in view of Ext.D2 Will, the ownership over the property including the shop room was vested with the father of accused no.2 and in view of the recital in Ext.D2 Will, the absolute ownership over the property in question would have vested with accused no.2 only after the death of his father. Ext.D3 death certificate shows that the father of accused no.2 was died on 4.2.2000, whereas the occurrence in the present

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case was on 28.4.1999 and therefore on the strength of Exts.D2 and D3 documents, it can be seen that the ownership was not vested with accused no.2. So, according to me, the evidence adduced by the prosecution to connect accused no.2 with the alleged incident is shabby in nature and it is not safe to act upon such shabby evidence to implicate accused no.2 in the present crime.

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Another important fact, which as far as an offence referred under the various Sections of the Abkari Act is concerned is very crucial, is the delay that occurred in producing the material objects as well as the sample before the court. No dispute that though the prosecution claimed that the seizure was effected on 28.4.1999, the material objects were produced before the court only on 14.10.1999 as per Ext.P6 property list. An endorsement of the learned Magistrate contained in Ext.P6 reiterates the fact that the court received the material objects only on 14.10.1999. Absolutely no convincing explanation offered by PW6 for such a delay. An attempt was made by PW6 to get rid of

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that delay and his vague explanation was that he was very busy and there were other material objects collected earlier connected with another cases which were to be produced. But the above explanation shown as false through the cross examination of PW6. During the cross examination, PW6 has admitted that, “Case പ�ട�ചത�ന�ശ�ഷ� 4-5 പപ�വ�� ഞ�ന ശ��ടത�യ�ല ശപ�യ�ട�ണ�. അന��ന� ഈ നത�ണ� ഹ�ജര��ണന$�� ശത��യ�ര��. പശ% അത�ന�$�മ�ള പല ശ�സ�നലയ�� നത�ണ� ഹ�ജര��ന�ണ�യ�ര��. Adds. ശ��ടത� staff സ+,�ര��ന വ�സമ ത��ത� ന��ണ�ണ M.Os. ഹ�ജര��ന വവ��ത. നത�ണ��ള നത�ണ�$�റ�യ�ല�ണ സ3%��ത. നത�ണ�$�റ�യ�നട ത�ശ��ല ഞ�ന ആര�നട �യ�ല�� ന��ട��റ�ല6 . എന8 വ�വ�� തന�യ�യ�ര��.” The above explanation offered by PW6 is not sufficient to get over the inordinate delay of 6 months in producing the material objects and samples before the court. It has already been admitted by him that, after the seizure of contraband article in the present case, he had appeared before the court on several occasions. In this juncture it is also relevant to note that though he claimed that the

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samples and material objects were under his custody, he has not stated anything about the safety measures taken by him to keep the samples and the material objects safely and to prevent tampering of the same. A Division Bench of this court in the decision in Ravi Vs. State of Kerala (2011(3) KLT 353) it has held that, “Production of the property before Court without unreasonable delay is also a necessary requirement of law and there should be explanation for the delay when there is delayed production of the property.” In the present case, the delay is inordinate, for which there is no proper or convincing explanation. As there is no safety measures adopted by PW6, the possibility of tampering the samples and material objects cannot be ruled out. So, the above root defect in the prosecution case, will definitely go in favour of the appellants/accused.

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In the light of the above discussion and in view of the materials and evidence referred to above, I am of the view that, the prosecution has not succeeded in proving its

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case against the appellants beyond reasonable doubt and therefore I am unable to approve the findings and conviction recorded by the trial court against the appellants and accordingly the same are set aside.

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In the result, this appeal is allowed setting aside the judgment dated 21.10.2005 in S.C.No.421/03 of the court of Additional Sessions Judge (Ad hoc)-II, Thodupuzha, 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//

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P.A. to Judge

Satheeesan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Satheeesan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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