Allowed

Somayya,S/O. Madara v. State of Kerala

Kerala HC11 Feb 2013CRL.A/278/2012

Case brief

AI extract

What is this about?

The accused appealed against conviction for possession of illicit liquor under the Abkari Act. The High Court held the prosecution failed to prove the sample in the chemical analysis report originated from the seized liquor due to manufacturing date discrepancies and lack of valid custody chain. Conviction was set aside.

What did the court decide?

Conviction set aside; appellant acquitted of all charges and set at liberty.

Somayya,S/O. Madara 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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MONDAY, THE 11TH DAY OF FEBRUARY 2013/22ND MAGHA 1934

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CRL.A.No. 278 of 2012 (D)

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SC.201/2010 of ADDL. DISTRICT AND SESSIONS COURT (ADHOC-III), KASARAGODE DATED 11.7.2011

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APPELLANT(S)/ACCUSED:

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SOMAYYA, S/O. MADARA, 24/00, KALLAKKALAYA HOUSE, HIDAYATH NAGAR, BARADUKKA, BADIADKA VILLAGE.

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BY ADV. SRI.P.G JAYASHANKAR(STATE BRIEF)

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RESPONDENT(S)/COMPLAINANT:

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

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BY PUBLIC PROSECUTOR ADV.SMT.V.H.JASMINE

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-02-2013, 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.278 of 2012

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

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J U D G M E N T

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The accused in a prosecution for an offence

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punishable under section 55(a) of the Abkari Act is the appellant as he is aggrieved by the judgment dated 11.7.2011 in S.C.No.201 of 2010 of the court of Additional District and Sessions Judge (Ad hoc) III-Kasaragod, by which the learned Judge convicted and sentenced the appellant for the said offence.

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The prosecution case is that, on 19.12.2000, while the accused was proceeding through the Mulleria-Badiadka tar road at Pilamkatta road junction by carrying 36 bottles of No.I Highway Fine Whisky (375 ml. each) an Indian Made Foreign Liquor, the sale of which was restricted only in the State of Karnataka by violating the provisions of the Abkari Act and Rules and he was caught hold off with the contraband article by the Sub Inspector of Badiadka police

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station at about 4.30 p.m. on 19.12.2000. On the basis of the above allegation, crime No.225 of Badiadka police station was registered for the offence punishable under section 55(a) of the Abkari Act. On completing the investigation, report was filed before the court of Judicial First Class Magistrate-Kasaragod, based upon which C.P.No.5/2001 was instituted and committed to the Sessions court, Kasaragod, and originally S.C.No.177 of 2002 was instituted but subsequently the case was renumbered as S.C.No.201 of 2010, since the accused absconded in the meanwhile.

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During the trial of the case, from the side of the prosecution Pws.1 to 5 were examined and produced Exts.P1 to P7. No evidence either oral or documentary adduced from the side of the defence. M.O.1 residue of the sample was identified and marked as material object. Finally, the trial court came into a conclusion that the prosecution has proved the case against the accused

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through unimpeachable and credible evidence, and also that the prosecution has established the offence against the accused. Consequent to such finding, the accused is found guilty and accordingly he is convicted for the offence under section 55(a) of the Abkari Act. On such conviction, the appellant/accused is sentenced to undergo rigorous imprisonment for a period of 4 ½ years and to pay fine of `1 lakh and in default, he is directed to undergo rigorous imprisonment for 3 months. Set off was allowed. It is the above finding, order of conviction and sentence challenged in this appeal.

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As the appellant is undergoing imprisonment in pursuance to the above judgment, he preferred the present appeal from jail and on receiving the appeal, as ordered by this Court, the Registry has appointed Adv.Sri.Jayashankar P.G. as State Brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard Adv.Sri.Jayashankar P.G. learned counsel for the appellant and Smt.V.H.Jasmine,

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the learned Public Prosecutor for the State.

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To prove the prosecution allegation against the appellant, the prosecution mainly depends upon the evidence of Pws.1, 4 and 5, since the independent witnesses examined as Pws.2 and 3 have turned hostile. When PW1 was examined, he had deposed in terms of the prosecution case and according to him, on 19.12.2000, when himself and party proceeded through the Mulleria-Badiadka public road at Pilamkatta, they saw the accused coming in their opposite direction by keeping in his possession a big shopper bag. According to PW1, on suspicion, the said bag held by the accused was examined after restraining the accused and thus inside the bag he found 36 bottles with a label declaration as No.I Highway fine whisky (375 ml. each). PW1 has also deposed that, in the said label there was an inscription to the effect that the same meant for sale in Karnataka only. According to PW1, as the accused was found keeping in his possession Indian Made Foreign Liquor

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without any valid document, he arrested the accused from the spot and prepared arrest memo, and the arrest of the accused was informed to his relatives and the contraband article was seized as per the mahazar. According to him, after the arrest of the accused and the seizure of the contraband article, they returned to the Badiadka police station and thereafter Crime No.225/00 was registered. When PW1 was examined, Ext.P1 arrest memo, Ext.P2 seizure mahazar, Ext.P3 FIR, Ext.P4 property list, Ext.P5 forwarding note, Ext.P6 scene mahazar and Ext.P7 chemical analysis report were marked through him. PW5 is the then Head Constable attached to the same police station, who accompanied PW1 at the time of the detection and the seizure of the contraband article. When PW5 was examined, he had also deposed in favour of the prosecution, particularly in tune with the deposition of PW1.

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As I indicated earlier, when Pws.2 and 3, the independent witnesses, were examined, they turned hostile.

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Thus the evidence of Pws.2 and 3 are not helpful for the prosecution. PW4 is an independent witness who is an attestor to Ext.P6 scene mahazar. When PW4 was examined, he had deposed in favour of the prosecution and he identified the signature in Ext.P6 scene mahazar. These are the evidences referred to and relied on by the learned Judge of the trial court in support of his findings and in convicting the appellant.

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Sri.Jayashankar P.G., learned counsel for the appellant, strenuously submitted that in order to attract section 55(a) of the Abkari Act, a mere allegation that the accused has found in possession of illicit Indian Made Foreign Liquor is not sufficient but the prosecution has to plea and prove any contravention of the provisions of the Act. But in the present case, the prosecution has no such a case and therefore the offence under section 55(a) of the Abkari Act is not attracted against the appellant. The second point of the counsel is that there is considerable

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delay in producing the contraband article before the court below, since according to the counsel, though the alleged seizure was effected by the prosecution on 19.12.2000, the same were produced on 21.12.2000 and the said delay is not properly explained. The most important contention of the counsel is that the identity of the article alleged to have seized from the possession of the appellant is not properly proved, since in Ext.P4 property list, there is no inscription of the properties alleged to have seized from the possession of the appellant and at the time of the trial, the big shopper bag and the two bottles from where the samples alleged to have drawn etc. are not available and the bottles produced by the prosecution shows that the Indian Made Foreign Liquor prescribed therein was manufactured on 27.12.2000 and therefore the prosecution allegation that the contraband article that produced was seized from the possession of the appellant on 19.12.2000 is not tallying. Another contention advanced by the counsel for the

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appellant is that the learned Judge of the trial court is wrong in accepting the case of the prosecution solely on the basis of the interested evidence of Pws.1 and 5 who are the police officers, especially in the absence of any independent evidence and more particularly when the evidence of Pws.1 and 5 are not free of doubt and infirmities and contradictions. It is also the contention of the counsel that the quantity of sentence imposed on the appellant is disproportionate to the allegation raised against the appellant.

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On the other hand, the learned Public Prosecutor vehemently submitted that even though the independent witnesses turned hostile, the evidence of the prosecution witnesses namely Pws.1, 4 and 5 are intact and nothing brought on record to disbelieve their version. According to the learned Public Prosecutor, the delay is only 2 days which noway prejudiced the accused and therefore the findings of the court below are absolutely correct with

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respect to the delay. Thus according to the learned Public Prosecutor, the finding of the court below is based upon the evidence and materials on record and the appellant has miserably failed to make out any case to interfere with such a finding of the court below.

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I have carefully considered the contentions advanced by the counsel for the appellant as well as the learned Public Prosecutor and I have gone through the judgment of the trial court and the materials and evidence on record.

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In the light of the rival contentions and in the light of the finding of the court below, particularly in view of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offence under section 55(a) of the Abkari Act. In the light of the available materials and evidence, I am of the view that, this Court need not go into all the contentions raised by the counsel

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for the appellant, especially in the light of the settled legal position. A Division Bench of this Court in a decision reported in Ravi Vs. State of Kerala (2011(3) KLT 353) has held that, “Prosecution has a duty to prove that it was the sample taken from contraband liquor seized from accused which had reached the hands of Chemical Examiner in a fool proof condition”. According to me, on examination of the facts and circumstances involved in the case and the evidence, and in the light of the dictum laid down in the above decision, the prosecution has not succeeded to prove that Ext.P7 chemical analysis report that represents the sample allegedly drawn from the contraband article claimed to have seized from the possession of the appellant/accused on 19.12.2000. It is relevant to note that as per the prosecution allegation and as per the evidence of Pws.1 and 5, 36 bottles, each of having 375 ml. capacity, containing No.I Highway fine whisky, were seized from the possession of the appellant.

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As rightly pointed out by the counsel for the appellant, that Ext.P4 property list bares no description of the contraband article. During the trial of the case, the two bottles out of the 36 bottles, which claimed to have seized from the possession of the appellant, from where the samples allegedly taken, were not produced before the court. Suffice to say that, on the 34 bottles, which were available at the time of the trial, the date given in the label affixed on those bottles containing the Indian Made Foreign Liquor shows that, the same were manufactured on 27.12.2000, ie., after 8 days from the date of seizure of the so called contraband article from the possession of the appellant. Absolutely there is no convincing explanation for the above serious discrepancy. If actually the contraband article was manufactured on 27.12.2000, there is little chance for seizure of the same on 19.12.2000. In the absence of physical evidence with respect to the bottles, from where the samples were drawn, and particularly when the 34

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bottles produced before the court show that the manufacturing date of those Indian Made Foreign Liquor as 27.12.2000, it cannot be said that Ext.P7 chemical analysis report represents the samples which drawn from the contraband articles alleged to have seized from the possession of the appellant. So, the prosecution has miserably failed to withstand the test laid down in the decision of the Division Bench of this Court cited supra.

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In this juncture it is also relevant to note that Pws.1 and 5 have admitted that, during the date of the alleged seizure of contraband article in the present case, they have conducted Abkari raid and also effected seizure in another case, in which 36 bottles of Indian Made Foreign Liquor were involved. In this respect it is relevant to note that, PW5 during his cross examination has deposed that, “അന� ഈ ക�സല�ത� ക�ത� case-�ള detect ത�യ��ര�ന� എന� ഓര�. ഇക��ള ഹ�ജര�ക� ��ണ�ന M.O.1 series-ല ഒട�ച�ര�ക�ന label അ��ല 27.12.00 �$യ�� ആണ� mfg. date ആയ�

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��ണ�ച�ട�ള��. മറ� ��ല��ല�* അങത, ആണ� കരഖത�ട�ത� ��ണ�ന�� (the bottles are put to him for verifying the mfg. date). 19.12.00 ,� പ�ട�ച� എന� പ�യ�ന മദ2* അല M.O.1 series ല ഉള�� എന� പ�ഞ�ല എ,�ക� പ�യ�ന �ഴ�യ�ല .” From the above admission of PW5, it can be seen that the defence has succeeded in bringing out the fact that the prosecution could not successfully establish beyond reasonable doubt that M.O.1 series are seized exclusively from the possession of the appellant/accused. It is also pertinent to note that after the alleged seizure of the contraband article on 19.12.2000 and though Pws.1 and 5 claimed that another seizure was effected on that itself, in which also, 36 bottles were involved, there is no explanation for the delay in producing those contraband articles before the court on the date of seizure itself or at least on the next day. From the evidence and the materials on record it appears that the contraband articles were produced on 21.12.2000. There is no evidence as to who were the custodian of these articles

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till the same were produced before the court. It is under the above factual background, the discrepancies of the prosecution case, particularly with respect to the manufacturing date of the contraband articles has to be appreciated. So, the above evidence and materials show that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt and therefore, that benefit goes in favour of the appellant and hence, extending the benefit of doubt, the appellant is entitled to get an acquittal and accordingly the conviction recorded by the trial court against the appellant is liable to be set aside and I do so.

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In the result, this appeal is allowed setting aside the judgment dated 11.7.2011 in S.C.No.201 of 2010 of the court of Additional District and Sessions Judge (Ad hoc)IIIKasaragod, 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

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levelled against him, he is entitled to get released from the jail, if he is not required in any other case. Therefore, the Registry is directed to forward the Gist of the judgment to the Superintendent, Open Prison, Cheemeny, Kasaragod, for further action in this regard.

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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

Somayya,S/O. Madara v. State of Kerala

Case brief

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Somayya,S/O. Madara v. State of Kerala

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