Allowed

Chathankutty v. State of Kerala

Kerala HC22 Nov 2013CRL.A/295/2005

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and acquitted the appellant. The court held that the prosecution failed to establish beyond reasonable doubt that the accused was engaged in distilling illicit arrack. Critical defects included the absence of evidence regarding custodianship of seized samples, unexplained delays in court production, lack of seal impressions, and contradictory testimony fr

What did the court decide?

The appellant is acquitted of all charges; the impugned judgment is set aside; bail bond is cancelled; appellant is set at liberty.

Chathankutty 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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FRIDAY, THE 22ND DAY OF NOVEMBER 2013/1ST AGRAHAYANA, 1935

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CRL.A.No. 295 of 2005 (C)

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AGAINST THE ORDER/JUDGMENT IN SC 341/2002 of ASSISTANT SESSIONS COURT, TIRUR DATED 28-01-2005

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APPELLANT/ACCUSED:

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CHATHANKUTTY, S/O. KUNHINAGAN, AGED 59 YEARS, A.R.NAGAR, TIRURANGADI, MALAPPURAM DISTRICT.

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BY ADVS.SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER

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RESPONDENT:

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THE STATE OF KERALA, REPRESENTED BY 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 22-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.295 of 2005

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Dated this the 22^nd day of November, 2013

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JUDGMENT

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The appellant is the sole accused in S.C.No.341 of 2002

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of the court of the Assistant Sessions Judge, Tirur and in this appeal he challenges his conviction and sentence imposed for the offence punishable under Section 8 (2) of the Abkari Act by the judgment dated 28/01/2005 in the above sessions case.

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The prosecution allegation is that, at about 2 p.m. On 06/01/2001, the accused was found standing on the NorthEastern corner of the property belonging to one Haneefa, adjacent to an Oven, where process of manufacturing of arrack were going on and therefore according to the prosecution the accused has committed the offences punishable under Section 55(a) and 8(1) of the Abkari Act. On the above allegation Crime No.14 of 2001 was registered in the Tirurangadi Police Station and on completing the investigation the police filed a report in the Judicial First Class Magistrate Court, Parappanangadi wherein C.P.No.34 of 2002

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was instituted and the learned Magistrate by his order dated 30/10/2002 in the above proceedings committed the case to the Sessions Court wherein S.C.No.341 of 2002 was instituted which made over to the present trial court for disposal.

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On the appearance of the accused before the trial court, after considering the prosecution materials and the arguments of both prosecution and defence a formal charge was framed against the accused for the offence punishable under Section 55(a) and 8(1) of the Abkari Act and the accused denied the same when the said charge read over and explained to him. Therefore, the trial was further proceeded, during which Pws.1 to 6 were examined and Exts.P1 to 5 documents were marked and MOs.1 to 9 were also identified as material objects from the side of the prosecution. Finally the trial court has found that the accused was found in conscious possession of MO.1 and thereby committed the offence under Section 8(1) of the Abkari Act. According to the learned Judge the charge under Section 55(a) is only a surplusage. Accordingly, held that the accused has committed the offence punishable under

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Section 8(1) of the Abkari Act and therefore he is convicted thereunder and on such conviction he is sentenced to undergo simple imprisonment for three years and he is directed to pay a fine of `1,00,000/- and in default he is directed to undergo simple imprisonment for one year under Section 8(2) of the Abkari Act. Set off is allowed under Section 428 of Cr.P.C. Aggrieved by the above order of conviction and sentence the accused therein preferred this appeal.

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I have heard Sri.P.K.Suresh Kumar, the learned Senior Counsel appearing for the appellant and Sri.Abdul Khadir, the learned Public Prosecutor for the State.

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PW.1 is the then Additional S.I. of Police attached to Thirurangadi Police Station who detected the crime along with PW.2. When Pws.1 and 2 were examined they have deposed that while they were on patrol duty, PW.1 got reliable information that one Chathukutty was manufacturing illicit arrack in the property of one Haneefa and accordingly the police party lead by PW.1 reached the property of Haneefa and they saw the accused standing in the N-Eⁿ corner of the

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property of Haneefa adjacent to the Oven where manufacturing process of arrack was going on. According to these witnesses, they have seen the apparatus arranged for distillation of illicit arrack and there was fire in the oven. According to them, the distilled liquid which came out through PVC pipe was collected in a Can. Thus, according to these witnesses, the liquid so collected in the Can was tested by tasting and smelling and thus they have realised that it was illicit arrack. It is the further case of Pws.1 and 2, after putting out the fire, the entire material objects were taken into custody. There was 20 litres of wash in the vessel at the bottom. There were two other cans which contained molasses 35 litres each. The Can contained 500 ml. of arrack. According to Pws.1 and 2, two samples were drawn from the arrack and the sample was sealed in the presence of the accused and the witnesses. Label was affixed and the signature of the witness and the accused were obtained on the label. According to them, the accused was arrested at 2.10 P.M. It is the further claim of the prosecution that the entire

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proceedings was recorded in a detailed mahazar wherein it is specifically stated about the seizure of the contraband article, drawing of sample and arrest of the accused. According to Pws.1 and 2, on completing the proceedings, they returned to the Police Station and registered a crime. When PW.1 was examined Ext.P1 arrest memo, Ext.P2 seizure mahazar and Ext.P3 F.I.R. were identified and marked through him. PW.1 has also identified MO.1 to MO.9 material objects. Pw.3 is an independent witness, who is an attestor to Ext.P4 scene mahazar. PW.4 is another independent occurrence witness and he was an attestor to Ext.P2 seizure mahazar and they have admitted their signatures respectively in Exts.P4 and P2 documents. PW.5 was the then Additional Sub Inspector of Police, who undertaken the investigation. The further investigation was undertaken by PW.6, another Additional Sub Inspector of Police then attached to Thirurangadi Police Station, who laid the charge on completing the investigation and Ext.P5 chemical analysis report is marked through PW.6. It is on the basis of the above evidence and materials the trial

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court found that the accused has committed the offence under Section 8(1) of the Abkari Act.

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The learned Senior counsel for the appellant vehemently submitted that the prosecution has no case and evidence that the accused was found engaged in the manufacturing of illicit arrack and therefore according to the learned counsel no offence would be attracted. It is also the contention of the learned counsel that there is no evidence as to who took the sample and no forwarding note is filed and produced in the present case so as to show that the sample allegedly taken has reached the hands of the chemical examiner safely. It is also contented by the learned counsel that though the alleged occurrence was on 06/01/2001 and the sample and the material objects allegedly seized on 06/01/2001, but the same were produced before the court only on 11/01/2001 and for such there is no convincing explanation. According to the counsel, there is no evidence as to where the sample and the contraband articles were kept and who was the custodian of the same till the same produced before the court

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and therefore no evidentiary value can be attached to the chemical analysis report produced in this case. In support of the fervent plea for an acquittal, the learned counsel placed reliance upon the following decisions:- Ismalikhan Aiyubkhan Pathan Vs. State of Gujarath [2000 (10) SCC 257] , Ravi Vs. State of Kerala [2011 (3) KLT 627] , Nellikunnel Jose Vs. State of Kerala [AIR 2000 SC 3577 (2)] , Sambasivan Vs. State of Kerala [2007(1) KHC 462] , Gopalan Vs. State of Kerala [2012 KHC 812] and Jayakumar @ Kolusu Jayan Vs. State of Kerala [2007 (4) KHC 236] .

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Per contra the learned Public Prosecutor submitted that the evidence of PWs.1 and 2 are supported by contemporary documents like Exts.P1 and P2 and therefore the allegation against the accused that he was found in possession of the illicit arrack stand proved. After taking me through Ext.P2 seizure mahazar and Ext.P1 arrest memo, the learned Public Prosecutor submitted that the presence of the accused very adjacent to the oven and the contraband article are established but the accused has no convincing explanation

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for his physical presence. According to the learned Public Prosecutor all other aspects in the prosecution case are in tact and therefore the trial court is correct in accepting the prosecution case and evidence and materials on record for convicting the appellant. Therefore, according to the learned Public Prosecutor, no interference is warranted.

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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 and also gone through the authorities cited.

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Having regard to the facts and circumstances involved in the case, particularly in the light of the evidence and materials on record, especially in view of the rival contentions raised, the question to be considered is, whether the finding and the conviction recorded by the court below are sustainable. In this juncture, it is relevant to note that, to prove the detection of the crime and the seizure of the contraband article and the arrest of the accused, though the

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prosecution has examined Pws.1 to 4, out of which, only Pws.1 and 2 the official witnesses supported the prosecution case and Pws.3 and 4, who are the independent witnesses, turn hostile to the prosecution case and they have simply admitted their signatures in the respective documents in which they are shown as attestors. In this case it is relevant to note that, though PW.3 has not supported the prosecution case he was not declared as hostile. Even if a witness is declared as hostile the evidence of such hostile witnesses need not be disbelieved or rejected in toto. But in the present case as far as the prosecution has not declared PW.3 as hostile his evidences can be treated as loyal witnesses of the prosecution. Thus on examination of the evidence of Pws.3 and 4 it can be seen that PW.3 during chief examination itself has stated that he has no acquaintance with the accused and he had put his signature in Ext.P4 scene mahazar. During cross-examination he had stated that he had affixed his signature on Ext.P4 from the road. There was no re-examination as well on the above point. PW.4 is cited as another independent occurrence witness. In

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the chief-examination itself he had stated that he had not seen the accused but he had admitted his signature in Ext.P2 mahazar. He had further stated that when he was putting signature, he had not seen the implements for distillation of arrack. During the cross-examination of the Public Prosecutor he had deposed that the signature seen on MO.9 label is not that of himself and he had also admitted that he was questioned by the police. He had further stated:-

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He had also denied the suggestion put by the learned Public Prosecutor on the basis of his 161 statement.

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From the above evidence of the independent witness

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it can be seen that they did not support the entire prosecution case. If that be so, the further question to be considered is,

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how far the evidence of PWs.1 and 2, the official witnesses can be relied and acted upon. PW.1 is the officer who detected the crime in the present case. Though in the chief-examination PW.1 has stated that he had seen about the manufacturing of arrack on the North-Eastern corner of the property of Haneefa, but he had stated that he had seen the accused standing near to it. According to PW.1, the contents of the Cannas is tested by tasting and smelling in the presence of one Hamsa, a witness and thus he realised that the same was illicit arrack. Further he had stated the steps taken towards the seizure of the material objects. He had further stated:-

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“2 ല�. ട2�ള%ന can-ല . സ�മ�ര 500ml. ച�ര�യ� 2ണ� ആയത 375ml. ട2�ള%ന രണ� 2�പ�2ള�ല 250ml. �F � sample എട�ത�. sample sea l ടചയ �. പപ �യ�� ഞ�ന�� സ�ക�യ�� ഒപ�ട label പ �ച%.”

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No description of such seal is given by PW.1. He had

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also stated that the accused was arrested as per the law and

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the implements used for distillation, sample bottle are taken into custody as per seizure mahazar prepared and the wash was destroyed in the presence of witnesses at the scene of crime itself. During the cross-examination, PW.1 has admitted in an unequivocal terms that the handwriting in Ext.P2 seizure mahazar not that of himself. He had also stated that the accused was not seen dealing with the material objects. He had admitted that seizure mahazar reached the court only on 08/01/2001. The property list was also reached the court only on 11/01/2001. He had further admitted that in MO.1 to MO.8, there was no signature of the accused or the witnesses or himself. He had also stated that the label was not prepared in his own handwriting. Finally he had stated that:-

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“എടM ക2പടയ�ല ഒര� രരഖയ�� ഇല9. ഞ�ന പറഞ� ടചയ�ച �ണ.”

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Now let us examine the evidences of PW.2.

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During the chief-examination PW.2 has stated in tune

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with the deposition of PW.1. But during the cross-examination

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he has stated that he has not signed in the seizure mahazar. He had also stated that:-

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PW.2 has also stated that, no statement was prepared in

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his own handwriting and no signature of the accused was obtained on the material objects.

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Thus, on scrutiny of the evidence of Pws.1 and 2 it can be seen that, according to them, the accused was just seen adjacent to the oven, where the distillation was going on. In this case it is relevant to note that, the trial court was not prepared to accept the case of the prosecution that the accused engaged in the distillation of the illicit arrack and therefore in the impugned judgment itself the learned Judge of the trial court has observed in the following lines:-”But the sample was not drawn from the molasses which was found in MO.2 vessel and MO.7 and MO.8 vessels. So, whether the liquid in MOs.2, MO.7 and MO.8 contained alcohol could not be convincingly established before this court and that is the sole reason why I have

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not thought of altering the charge under Section 55(b) of the Abkari Act for manufacturing arrack.” The above finding of the learned Judge of the trial court became final as the State has not filed any appeal against the same. The independent witnesses namely Pws.3 and 4 never admitted the presence of the accused and they never stated that the accused seen engaged in the distillation of illicit arrack as well. PW.3 who is an attestor to Ext.P4 scene mahazar, who was not declared as hostile submitted that he put the signature in Ext.P4 scene mahazar in the road. So the content of Ext.P4 scene mahazar not proved by the prosecution with the assistance of independent witness. PW.4 though he was declared hostile, during the chief-examination he had stated that when he was putting signature in Ext.P2 mahazar he did not see any implements for distillation of arrack. The further facts deposed by PW.4 during his cross-examination at the instance of the learned Public Prosecutor appears to be very correct. He had specifically denied in the cross-examination thus:-

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2ണ�ട�ല9. ഹനFഫയ�ടട പറമ�ടM �ടക� 2�ഴടക മVലയ�ല 2�ഴക� പട�ഞ�റ�യ� രപ�2�ന ട�ളച�ല�ല അട�പ� ഉണ�ക� ആയ �ല ഒര� അല�മ�ന�യ 2ല�� ആയ �ന മ�2ള�ല ഒര� 2ലത�ന�ള�ല ദY�ര� ഉണ�ക� മരത�ടM ട�ല PVC pi pe ഘട�പ�ച� ന�ലത� ഉള 2റ�ത 2ന�സ�രലക� ട�ച �യ�� 2ണ� . എന� ടമ�ഴ� ട2�ട�ത�ട�ല9 ആയ �ന സമFപ� പര�യ�ര� ച�തന 2�ട� എനയ�ള ന�ലക�ന �� 2ണ� എന� രപ�ലFസ�ന പറഞ� ട2�ട�ത�ട�ല9.”

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So, the independent witness examined by the

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prosecution has not supported the prosecution case about the presence of the accused at the place of occurrence and they have also denied the presence of implements for distillation of arrack. In this juncture it is pertinent to note that, when PW.1 was examined he had deposed that the content of MO.1 Can was identified as arrack by smelling and testing in the

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presence of one Hamsa, who had also tasted the same. But the said Hamsa has also not cited and examined as witness. It is equally important to note that, even according to the prosecution, the scene of occurrence is on the North-Eastern corner of the property of one Haneefa, but the said Haneefa is not seen cited and examined. So, the available material witnesses were not cited and examined and thereby the prosecution has suppressed the best evidence from the scrutiny of the court for the reason best known to them and instead of that they have got Pws.3 and 4 who were constrained to put their signatures respectively in Exts.P3 and P4 at the instance of the police. It is also relevant to note that, even according to Pws.1 and 2, they have no case that they have witnessed the accused engaged in the distillation of the arrack.

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The net result of the above discussion and the evidence and materials on record is that the prosecution has miserably failed to establish though no specific section of offence for illicit distillation of arrack incorporated and

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alleged, the allegation appears to be that the accused was found engaged in the distillation or manufacturing of arrack. The trial court has also rejected that portion of the allegation of the prosecution. Having regard to the prosecution allegation in toto and the materials placed before the court below, except the defect in not taking sample from the molasses, in all other respect the prosecution ought to have alleged Section 55(b) of the Abkari Act. According to me, since the prosecution has failed to establish their main allegation that the appellant was found engaged in the distillation of illicit arrack, the court will not be justified in convicting the appellant for the offence under Section 8(1) of the Abkari Act on the basis that he was found in possession of illicit arrack that too when even the official witness has no case that the accused was found in physical possession of the arrack. Thus, when the main plank of the prosecution case has broken neither the prosecution nor the court justified in convicting the appellant/accused on setting up a new case. The above position is settled in view of the decisions of the Hon'ble Apex Court in Devi Lal &

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another Vs. State of Rajasthan [1971 SCC Crl.Pg.719] State of Haryana Vs. Jagbir Singh & others [1977 SCC Crl.638] . Therefore, according to me, in the light of the above decision the finding of the court below and the conviction recorded against the appellant cannot be approved.

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It is equally important to note that, Ext.P2 is the first document claimed to have generated during the detection and investigation of the case and according to PWs.1 and 2, the same was prepared at the scene of occurrence. But Pws.1 and 2 has categorically stated before the court that Ext.P2 seizure mahazar is not prepared in the handwriting of either PW.1 or PW.2. Though PW.1 has claimed that he prepared Ext.P2 seizure mahazar he himself has stated that the seizure mahazar was not prepared in his handwriting. He had also stated that in this case, no document prepared in his own handwriting are available. In the light of the above admission of Pws.1 and 2, according to me, no evidentiary value can be given to Ext.P2 seizure mahazar to hold that the same was prepared at the scene of occurrence. In view of the evidence

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of PWs.1 and 2, it can be seen that Ext.P2 seizure mahazar was prepared in the handwriting of some other person, who was not present at the time of the alleged detection of the crime and the preparation of the mahazar. If the same was prepared in the handwriting of any body present at the spot, such witness would have been examined or PW.1 and PW.2 could have stated at least the name of such person. So it cannot be ruled out that Ext.P2 seizure mahazar was prepared in some other place probably in the Police Station itself. That is why PW.4 the occurrence witness reluctant to admit the prosecution case about the preparation of Ext.P2 seizure mahazar. So the first document, which came into existence firstly as per the prosecution version, itself is doubtful.

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It is relevant to note that, though Pws.1 and 2 claimed that on the material objects seized and the sample, seals were affixed on the same, there is no description about the seal affixed by PW.1 on the material objects as well as on the sample. No specimen seal impression is provided in Ext.P2 seizure mahazar. The above defect of the prosecution is very

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material in view of the fact that no forwarding note or requisition produced before the court. Normally when a forwarding note or requisition is made before the court for sending the samples for chemical analysis, the same would have contained the specimen seal impression, on the basis of which the chemical examiner could have, verify and report whether the same tallying with the seal affixed on the sample. But in the present case no sample seal is provided by filing a forwarding note. The details of the description of the seal affixed by PW.1 on the sample not mentioned in Ext.P2 mahazar as well. Therefore, there is no justification in the endorsement contained in Ext.P5 chemical analysis report that the seals of the bottle were in tact and tallied with sample seal provided. The above endorsement is absolutely baseless and incorrect for the aforesaid reasons.

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In another contest, the paucity of evidence regarding the seal used by PW.1 is relevant and material. In the present case the alleged seizure was effected on 06/01/2001 but the material objects as well as the sample were produced before

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the court only on 11/01/2001 and as such there is 5 days delay. But no explanation is forthcoming from PW.1 or from any official witnesses for such delay. There is no evidence to show as to who was the custodian of the samples and the material objects till the same produced before the court and what are the measures taken to keep the samples in tact and to prevent tampering of the sample. So, in the given facts and circumstances, tampering of the samples cannot be ruled out and therefore it cannot be presumed even for a moment that Ext.P5 chemical analysis report, representing the contraband article allegedly possessed by the accused. A Division Bench of this Court in the decision reported in Ravi Vs. State of Kerala [2011 (3) KLT 353] has held the prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the chemical examiner in a fool proof condition. In the very same decision the Division Bench has held that the statute enjoys that seizure of the property should be reported forthwith to the court and the production of property before

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the court should also took place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. But in the present case, the prosecution case has miserably failed to comply with the above legal requirement as held by this Court in the above Division Bench decision.

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In the light of the foregone discussion and in view of the evidence and materials referred to above, I am of the view that the prosecution has miserably failed to substantiate its case beyond reasonable doubt against the accused. But the trial court miserably failed to consider the above vital defect in the prosecution case including the delay and simply accepted the evidence of Pws.1 and 2 to convict the appellant. Therefore, I am unable to support the finding of the court below and to confirm the conviction recorded by it. Accordingly, by extending the benefit of doubt, the finding and 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 28/01/2005 of the court of the Assistant

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Sessions Judge, Tirur in S.C.No.341 of 2002 and the appellant/ accused is acquitted of all the charges levelled against him and the bail bond, if any, executed by the appellant stand 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

Chathankutty v. State of Kerala

Case brief

What is this about?

What did the court decide?

Chathankutty v. State of Kerala

Case brief

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What did the court decide?

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