Allowed

Prasad v. State of Kerala

Kerala HC4 Nov 2013CRL.A/534/2005

Case brief

AI extract

What is this about?

A criminal appeal challenging a conviction under sections 55(a) and (i) of the Kerala Abkari Act for possession of arrack. The High Court set aside the conviction due to failure to prove the appellant's identity, discrepancies in witness evidence regarding seizure location, unexplained delays in producing documents and samples, and lack of chain of custody for chemical evidence. The appellant was

What did the court decide?

Appellant acquitted of all charges; judgment dated 2.3.2005 set aside; bail bond cancelled; appellant set at liberty.

Prasad 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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MONDAY, THE 4TH DAY OF NOVEMBER 2013/13TH KARTHIKA, 1935

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CRL.A.No. 534 of 2005 ( )

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AGAINST THE JUDGMENT IN SC 1473/2004 of ADDITIONAL SESSIONS JUDGE (ADHOC)III, KOLLAM, DATED 02-03-2005

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APPELLANT(S)/ACCUSED:

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PRASAD @ PANDY PRASAD, S/O ANANDAN, PUTHUVAL PUTHEN VEEDU, SASTHAMPOIKA MIYANNURCHERI, NEDUMPANA.

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BY ADVS.SRI.R.KRISHNA RAJ

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SRI.A.SHANAVAS KHAN

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RESPONDENT(S)/RESPONDENT:

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STATE OF KERALA, REPRESENTED BY DISTRICT, GOVT.PLEADER.

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BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-11-2013, 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.534 of 2005

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Dated this the 4^th day of November, 2013.

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J U D G M E N T

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The challenge in the above appeal is against the judgment dated 2.3.2005 in S.C.No.1473/04 of the court of Additional Sessions Judge (Ad hoc)-III, Kollam, and the appellant is the accused in the above Sessions case since he is convicted and sentenced for the offence under Sections 55(a) and (i) of the Kerala Abkari Act.

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The prosecution case is that, on 29.1.2000 at 10.20 a.m. the appellant/accused was found in possession of 75 plastic packets of arrack, each of which having the capacity of 100 ml., at Miyannur Elai, which was allegedly kept for sale and therefore the accused has committed the offence punishable under sections 55(a) and (i) of Abkari Act. On the basis of above allegation, Crime No.36/00 was registered in the Chathannur Police Station against the

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appellant/accused for the said offence.

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On completing the investigation in the above crime, the police preferred report before the court of Judicial First Class Magistrate-Paravur, and upon such police report, eventually S.C.No.1473/04 was registered in the Sessions court and subsequently on the appearance of the accused, a formal charge was framed against him for the offences punishable under sections 55(a) and (i) of the Abkari Act and he denied the charge and pleaded not guilty when the same read over and explained to him. Consequently, the prosecution adduced its evidence by examining Pws.1 to 4 and producing Exts.P1 to P6 documents. M.Os.1 to 3 were also produced and marked. The trial court finally found that the prosecution has succeeded in proving the case that the accused possessed arrack and accordingly found that the accused is guilty of the offence under sections 55(a) and (i) of the Abkari Act and he is thus convicted thereunder. On such conviction, the appellant/accused was sentenced to undergo rigorous

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imprisonment for one year and to pay fine of `1 lakh and in default he is directed to undergo rigorous imprisonment for another 6 months. Set off was allowed. Aggrieved by the order of conviction and sentence, the accused therein preferred the present appeal.

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Heard Adv.Sri.R.Krishna Raj, learned counsel for the appellant and Adv.Sri.N.Suresh, learned Public Prosecutor for the State.

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Out of the four witnesses examined by the prosecution, Pws.1 and 2 who are independent witnesses and cited as attestors to the mahazar etc., were turned hostile. Under the above circumstances, the prosecution was constrained to stress upon the evidence of Pws.3 and 4 for canvassing the conviction against the appellant.

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When Pws.3 and 4 were examined, they have deposed in support of the prosecution case. PW3 was the then Police Constable attached to Chathannur Police Station who accompanied PW4 at the time of the alleged seizure and detection of the crime. PW4 was the then Sub

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Inspector of Police, Chathannur Police Station. According to these witnesses, while they were on patrol duty and when they reached at a place named Sasthampoyka Junction, PW4 received an information to the effect that the appellant/accused was selling arrack in a vayal varambu to the west of Miyannur Elai on 29.1.2000. Accordingly, they proceeded in their jeep to the spot and the jeep was stopped at the terminus of the road where the Elai varambu starts. According to these witnesses, all the officials on reaching at the spot, got down from the jeep and saw the appellant/accused in possession of a plastic bag and on seeing the police party, after abandoning the bag on the varambu, he escaped through the paddy field and the attempt made by the police party to arrest the accused from the spot resulted in vain. According to the police, the bag was opened and inspected which contains 75 plastic packets each packet having the capacity of 100 ml., containing full of liquid and one packet was opened and by smelling and tasting, the content was

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identified as illicit arrack. According to these witnesses, three more packets were opened and 200 ml. of arrack was collected in two separate bottles each having the capacity of 375 ml. According to them, the entire proceedings were taken place in the presence of independent witnesses. They have also deposed about the proceedings adopted by PW4 towards the drawing of samples and sealing of the material objects including the sample bottles. After returning from the place of occurrence, according to Pws.3 and 4, PW4 registered the FIR and a prepared list of properties and the above documents and the properties were produced before the court. According to the prosecution, the absconded accused was subsequently arrested on 29.2.2000 and he was produced before the court with the remand application and the samples were got examined by Chemical Examiner and obtained report showing the presence of ethyl alcohol in the samples. Thus, when PW4 was examined, Ext.P1 seizure mahazar, Ext.P2 FIR, Ext.P3 property list, Ext.P4 custody memo,

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Ext.P5 remand application and Ext.P6 chemical analysis report were got marked through him. These are the evidences and materials referred to by the learned Judge of the trial court in support of his finding and convicting the appellant/accused.

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The learned counsel for the appellant vehemently submitted that as there are several inconsistencies and contradictions in the evidence of Pws.3 and 4, the trial court is wrong in its finding, on the basis of such evidence, especially when Pws.1 and 2 who are the independent witnesses turned hostile towards the prosecution. It is also contended by the learned counsel that the prosecution has miserably failed to prove the identity of the accused and therefore the conviction recorded by the trial court is liable to be set aside. It is further contended that there is delay in producing the material objects before the court below for which there is no explanation and therefore the prosecution has not succeeded in proving its case against the accused beyond reasonable doubt and therefore the

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impugned judgment is liable to be set aside. Per contra, the learned Public Prosecutor submitted that the contemporary documents coupled with the evidence of Pws.3 and 4 ensure the correctness of the prosecution allegation and the therefore the trial court is fully justified in its finding and convicting the appellant.

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

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In view of the arguments advanced and in the light of the evidence and materials on record, what is to be considered is whether the trial court is correct and justified in convicting the appellant/accused for the offences punishable under sections 55(a) and (i) of the Abkari Act. At the outset, it has to be noted that even according to the prosecution, they got information about the involvement of the appellant/accused in the commission of the offence and they got the name of the accused as well. According to the

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prosecution witnesses, it is on the basis of such an information they proceeded to the scene of occurrence and effected the seizure and subsequently arrested the accused. The specific defence advanced by the appellant/ accused is that he was falsely implicated in the present crime at the instance of one Vimal - a Police Constable attached to the very same Police Station who is inimical to the accused. According to me, the entire prosecution allegation and evidence has to be evaluated and appreciated in the above backdrops of the case. It is an admitted case that the appellant/accused was not arrested with the contraband article. According to Pws.3 and 4, when they reached at the spot, on seeing the police jeep, the appellant/accused after abandoning the plastic bag, ran away from the spot. The defence took a contention both in the trial court as well as in this Court that the prosecution has miserably failed to prove the identity of the appellant/accused. The evidence of PW3-the Police Constable who accompanied PW4-the Detecting Officer

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shows that when the police party reached at the spot on getting information, the appellant/accused after placing the plastic bag, which was found in his hand, at the Nadavarambu, ran away from the spot. During the cross examination, he had deposed that the jeep was not gone upto the vayal varambu and they reached at that spot by walking and the jeep was parked on the eastern side of the road. According to PW3, the place of occurrence is ½ furlong away from the spot where the jeep was parked. He claimed that all the three persons had seen the appellant/ accused at a distance of 150 mtrs. PW3, in an unequivocal language deposed before the court that, “പ�ത� ഞങള�� റ� ത�ര�ഞ� ന�ല��കയ�യ�ര�ന�. ഞങള ��റകക ഓട� കന��.” and they had run for a distance of 50 mtrs. He denied his statement before the Investigating Officer about the fact that the appellant/accused ran away from the spot and he chased him etc. He had also admitted that the affixture of label has not been stated under 161 statement. PW3 has further

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stated that, “S.I. ക�ടട ഓട�യ�ല�. S.I. ��റകക നടന�വന�.” He had also stated that he ran towards the place where the arrack packets were placed. The above evidence of PW3, who at the relevant point of time had just completed one year service in the Chathannur Police Station, according to me is not sufficient to identify the appellant/accused. He has no claim that after the arrest of the appellant/accused, the appellant/accused was shown to him. But he identified the appellant/accused for the first time in the court, that too after 4 years from the date of the alleged incident.

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In this juncture, it is relevant to consider the evidence of PW4, to find out whether his evidence is believable and sufficient to establish the identity of the appellant/accused. According to PW4, when they reached at the spot, the appellant/accused ran away from the spot abandoning the plastic cover which was held by him. In the cross examination, PW4 has stated that, “Driver ഒഴ�ടക

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ബ�� ഞങള 3 ക�ര�� സലത�ക��യ�. ക$ത%സലത� ന�ല��ന

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ആള�� jeep ക�ണ��. Jeep കണത�� പ�ത� ഓട�. ഞങള jeep ന�രത� ഇറങ�യ സമയ� ഓട�. പ�ത� ന�ന സലവ�� jeep ന�രത�യ സലവ�� തമ�ല 25 metre ദ�ര� വര��.” He further stated that,

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“ഞ�ന കണക0�ള പ�ത� എടനയ�� കണ� . പ�ത� എന�� അഭ�മ�ഖമ�യ�ട�ണ ന�നത.” The above evidence of PW4 is diametrically opposite to the evidence given by PW3, who said to have accompanied PW4 at the time of the detection of the crime. According to PW3, the distance between the place at which the jeep was parked and the appellant/ accused was found standing, will come about ½ furlong and all the above three officials had seen the appellant/accused at a distance of 150 mtrs. and according to PW3, the appellant/accused was standing with his backside towards Pws.3 and 4. PW3 has also stated that PW4 has not chased the appellant/accused. In the light of the above direct conflict in the evidence of Pws.3 and 4 about the distance at which they found the appellant/accused, the position of the appellant/accused when they saw him and the fact that

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PW3 alone chased the appellant/accused etc., according to me, the evidence of PW4 cannot be believed that he had identified the appellant/accused at the place of occurrence. So, the above facts persuaded me to come into a conclusion that the name of the appellant/accused was incorporated in the prosecution documents only for the reason that, PW4 allegedly got information that the appellant/accused, whose name allegedly furnished to PW4, was engaged in the sale of illicit arrack. So, according to me, the identity of the appellant/accused is not proved beyond reasonable doubt.

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Another important lacunae in the prosecution case are about the delay in producing the material object as well as the delay occurred in producing the relevant documents before the court. Ext.P1 seizure mahazar dated 29.1.2000, Ext.P2 FIR, which is also dated 29.1.2000 and Ext.P3 property list having the same date were produced before the court only on 31.1.2000, even though the seizure was said to have been effected and the proceedings were completed by 10.30 a.m. on 29.1.2000. As to this aspect,

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no explanation is forthcoming from PW4, who had registered the FIR and who finally laid the charge after undertaking the investigation. From the endorsement contained in Ext.P3 property list, it appears that though it is dated 29.1.2000, it was produced and received in the court only on 31.1.2000 and there is no endorsement to retain the sample which mentioned as item no.4 in Ext.P3. Ext.P6 chemical analysis report shows that the learned Magistrate of the committal court forwarded the samples by his letter dated 18.4.2000. If that be so, there is lacuna in the evidence of the prosecution as to when did the samples were subsequently produced before the court after returning the same to the police as per the endorsement dated 31.1.2000 that seen in Ext.P3 property list. Absolutely there is no evidence as to who produced the same in the court and when it was produced etc. A Division Bench of this Court in the decision reported in

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Ravi Vs. State of Kerala (2011(3) KLT 353) has held that, “Production of the property before Court without

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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.” As I indicated earlier, though the alleged seizure was on 29.1.2000, the materials as well as the documents like Exts.P1 to P3 were produced before the court only on 31.1.2000. Though the delay is only two days, according to me, in the particular facts of this case, it is a very relevant and material lacuna. There is no explanation for such a delay as well. Secondly, as I indicated earlier, the samples and other material objects were returned to the police as per the endorsement found in Ext.P3 property list and there is no evidence as to when did the samples were reproduced and who produced the samples before the court. Regarding these aspects also, absolutely there is no evidence or explanation from the side of the prosecution. No doubt, the absence of any explanation in the above delay, certainly goes in favour of the appellant/accused and renders the prosecution case as doubtful.

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In the decision cited supra, the Division Bench has also held that the “Prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from accused which had reached the hands of Chemical Examiner in a fool proof condition.” According to me, the available evidence and materials are not sufficient to withstand the above test laid down by the Division Bench of this Court. First of all, it is relevant to note that about the seizure of the contraband article and the involvement of the appellant/accused itself are not proved beyond reasonable doubt, since the prosecution has failed to prove the identity of the appellant/accused and also failed to explain the delay, which I indicated earlier. In the present case, it is further relevant to note that even though the material objects and the samples were produced though belatedly, ie., on 31.1.2000, the same was returned to the police as per the endorsement seen in Ext.P3 property list. But there is no explanation or evidence as to when it was subsequently produced before the court. On the basis of

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the letter dated 18.4.2000 referred in Ext.P6 chemical analysis report, it can be presumed that the samples might have been produced before the court on or around the date mentioned in the said letter of the learned Magistrate. Still then, there is no answer as to who produced the samples. It is also relevant to note that though PW4 has claimed that the samples were kept in the almirah and the key of which was in his custody, such claim of PW4 cannot be accepted or believed, particularly when he failed to offer any explanation for the belated production of the samples before the court. It is equally important to note that in the evidence of PW4, he never deposed to the effect that he had made any request before the court to forward the samples for chemical analysis. Even if there is no oral evidence, the same could have been condoned, provided, there is a contemporary and documentary evidence to that effect. In the present case, no forwarding note or requisition from the side of the prosecution has been produced before the court for sending the samples. In the

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absence of any evidence in the deposition of PW4 or any documentary evidence, like the forwarding note or written requisition, the Court cannot arrive into a conclusion that it was the very same samples that were allegedly drawn from

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the contraband article said to have seized from the possession of appellant/accused which reached at the hands of the chemical examiner. A learned Judge of this Court in the decision reported in Gopalan Vs. State of

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Kerala (2012KHC 812) has held that,

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“.......When Exts.P1 and P2 do not show the factum of affixing of label on M.O.1 and the sample, PW3 cannot develop his case by giving a statement in evidence. Not only that though PW3 had deposed in evidence that labels were affixed on M.O.1 and the sample bottle, that label was not shown to the Court nor was any question put regarding that label by the prosecution. Learned counsel submits that had there been a label on M.O.1 containing the signatures of the accused and the witnesses, certainly that would have been put to the accused and the witnesses. That was not done. Another important aspect, according to the learned counsel, is the absence of specimen impression of the seal on the seizure mahazar and the property list. Curiously enough, copy of the forwarding note was also not marked. It is also important to note that PW6, the Investigating Officer has confessed that he did not see the seal alleged to have been used to seal M.O.1 and the sample bottle. There is a duty cast on the investigating officer to verify the same. It is also not in evidence as to

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what happened to the copy of the forwarding note and why it was not marked. Learned counsel for the appellant would submit that there are vitiating circumstances regarding arrest of the accused also. The arrest memo and the inspection memo which are used to be produced and marked in evidence are not seen produced or marked in this case. No specific question was put regarding those aspects. The prosecution did not bother to produce and mark the same. Absence of the specimen impression of the seal itself may not be a ground to doubt the prosecution case, but considering the totality of the circumstances that also would assume much relevance because PW6 himself says that he had no occasion to see the seal used to seal M.O.1 and the sample bottle. Ext.P3, the property list though was produced before the Court on 31/10/1997 does not show that M.O.1 and the sample bottle were affixed with the labels containing the signatures of the accused and of the witnesses.”

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In the present case also, in Ext.P1 seizure mahazar, there was no reference that the labels were affixed on the samples. In the absence of any documentary evidence like forwarding note, it cannot be held that the very same samples were reached at the hands of the Chemical Examiner, since the seal allegedly affixed on the samples was not provided by filing a forwarding note which in turn forwarded to the Chemical Examiner to show that the seal affixed on the samples is the same as that which provided.

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In the case mentioned in the decision cited supra, by giving benefit of doubt, this Court has acquitted the accused therein and due to the above defect in the present case, according to me, the prosecution has miserably failed to show that the samples allegedly drawn from the contraband article allegedly found in the possession of the appellant/accused, were reached at the hands of the Chemical Examiner and therefore, extending the benefit of decision of this Court in 2012 KHC 812 , the appellant in the present case is also entitled to get the benefit of doubt. The resultant conclusion upon the above discussion is that the prosecution has miserably failed to withstand the test laid down by this Court in the Division Bench decision cited supra and on that ground also, the appellant is entitled to get an acquittal.

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On a scanning of the evidence and materials on record, it can be seen that though there is a charge against the appellant/accused for the offence punishable under section 55(i) of the Abkari Act, no evidence or materials

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brought before the court to show that the appellant/ accused was engaged in the sale of illicit arrack or any evidence is adduced to substantiate such an allegation. Therefore, the findings of the court below that the appellant/accused has committed the offence under section 55(i) as well are liable to be set aside.

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In the light of the above discussion and the evidence and materials referred to above, I am of the view that, the prosecution has miserably failed to prove its case against the appellant/accused beyond reasonable doubt, but the learned Judge has miserably failed to extend the benefit of doubt in favour of the appellant/accused and accordingly convicted the appellant/accused. Therefore, I am unable to concur with the order of conviction recorded by the trial court and thus extending the benefit of doubt, the findings of the court below and the conviction recorded by it are set aside.

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In the result, this appeal is allowed setting aside the judgment dated 2.3.2005 in S.C.No.1473/04 of the court of

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Additional Sessions Judge (Ad hoc)-III, Kollam, and the appellant/accused is acquitted of all the charges levelled against him and the bail bond if any executed by him stand cancelled and he is 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

Prasad v. State of Kerala

Case brief

What is this about?

What did the court decide?

Prasad v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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