Allowed

Janardhanan v. State of Kerala

Kerala HC1 Nov 2013CRL.A/74/2005

Case brief

AI extract

What is this about?

High Court Kerala acquitted the appellant in a criminal appeal challenging conviction under the Abkari Act for illegal liquor possession. The court held that unexplained four-day delay in producing samples and absence of chain of custody evidence rendered the chemical analysis inadmissible, warranting acquittal.

What did the court decide?

Appeal allowed; conviction set aside; appellant acquitted and set at liberty; bail bond cancelled.

Janardhanan Vs State of Kerala — Civil Procedure and Limitation | 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 1ST DAY OF NOVEMBER 2013/10TH KARTHIKA, 1935

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CRL.A.No. 74 of 2005 ( )

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AGAINST THE JUDGMENT IN SC 178/2003 of ADDL.SESSIONS COURT, FAST TRACK (ADHOC-I), ALAPPUZHA, DATED 21-12-2004

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APPELLANT(S)/ACCUSED:

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JANARDHANAN, S/O. NEELAKANDAN, KARIPPALLIL THEKKETHIL, KAITHA SOUTH, KANNAMANGALAM VILLAGE, MAVELIKARA.

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BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH

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RESPONDENT(S)/STATE AND COMPLAINANT:

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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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2. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, MAVELIKKARA.

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BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-11-2013, 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.74 of 2005

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Dated this the 1^st day of November, 2013.

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Challenging the judgment dated 21.12.2004 in S.C.No.178/03 of the court of Additional Sessions Judge, Fast Track (Ad hoc-I), Alappuzha, the accused therein preferred the present appeal, since he is convicted and sentenced for the offence under section 8(1) and (2) of the Abkari Act as per the above judgment.

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The case of the prosecution is that while the Excise Inspector attached to Excise Range Office, Mavelikkara, and his party were on patrol duty at about 6 p.m. on 4.8.2001, they saw the accused coming in their opposite direction along Chettiyarethu Thekkemukku lying in front of the house of one “Thiruvathirayil” Unnikrishnan and the said accused was found in possession of a bottle having the capacity of 750 ml. in his hand and on

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interception and inspection of the bottle, the content of the same was realised as illicit arrack and accordingly the illicit arrack was seized and the accused was arrested, since the accused has committed the offence under section 8(1) of the Abkari Act and punishable under section 8(2) of the said Act.

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On completing the investigation, a formal charge was filed, on the basis of which S.C.No.178/03 was instituted in the Sessions court, Alappuzha, which eventually transferred to the present trial court for disposal. Thus, when the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the offence punishable under sections 8(1) and (2) of the Abkari Act and the accused denied the charge and pleaded not guilty when the same was read over and explained to him and consequently the prosecution adduced its evidence by examining Pws.1 to 4 and producing Exts.P1 to P4 documents. M.O.1 bottle was also identified and marked as material object. From

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Crl.A.No.74 of 2005

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the side of the defence, DW1 was examined and no documentary evidence was adduced. The learned Judge of the trial court after considering the entire evidence and materials on record came into the conclusion that the prosecution has proved beyond reasonable doubt that the accused had kept in his possession and transported 750 ml. of arrack in M.O.1 bottle and accordingly the accused was found guilty under sections 8(1) and (2) of the Abkari Act and thus he is convicted thereunder. On such conviction,

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the appellant/accused was sentenced to undergo imprisonment for a period of 1 year and to pay fine of `1 lakh and in default, to undergo simple imprisonment for one year more. Set off was allowed. Aggrieved by the above finding and order of conviction and sentence, the accused therein preferred this appeal.

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Heard Adv.Sri.George Varghese Perumpallikuttiyil, learned counsel for the appellant and Adv.Sri.N.Suresh, learned Public Prosecutor for the State.

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To prove the above allegation in the present case,

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there is no independent evidence and therefore the prosecution constrained to stress upon the deposition of Pws.1 and 4 and other documents produced in this case. PW1 is the then Preventive Officer attached to Mavelikkara Excise Range, who accompanied PW4, who is the then Excise Inspector of the very same Excise Range. When Pws.1 and 4 were examined, they have categorically stated about the facts which lead to the seizure of the contraband article from the possession of the appellant/accused and his arrest. According to Pws.1 and 4, when they were on patrol duty and while they were proceeding from Chettiyarethu Thekkemukku towards the southern side along the Panchayat road and when they reached in front of the house of one “Thiruvathirayil” Unnikrishnan, the appellant/ accused was found from a distance of 30 feet, coming in their opposite direction, holding a bottle having 750 ml. capacity and on seeing them, the appellant/accused got perplexed and tried to escape from the spot, but they intercepted him and inspected the bottle and the liquid

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contained in the bottle was realised as illicit arrack by smelling and tasting, and accordingly the appellant/accused was arrested and the contraband article was seized and samples were drawn from the illicit arrack found in the bottle in the possession of the appellant/accused. When PW1 was examined, Ext.P1 seizure mahazar is proved and marked and PW1 has identified M.O.1 bottle. When PW4 was examined, he has identified and proved Exts.P2, P3 and P4, which are respectively the crime and occurrence report, property list and chemical analysis report. Though Pws.2 and 3, who are independent witnesses, were cited and examined, they turned hostile. These are the evidence and materials referred to by the learned Judge in the impugned judgment, which form basis for his finding and in convicting the appellant/accused.

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Learned counsel for the appellant strenuously submitted that the prosecution has not proved its case against the appellant/accused beyond reasonable doubt and to substantiate the above point, it is pointed out that though

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PW1 has claimed that the appellant/accused was arrested from the spot and then he prepared arrest memo, though the same was not produced and marked. But, PW4 in his deposition has not mentioned about the preparation of arrest memo. After taking me through the arrest memo available in the case records, learned counsel submitted that it was prepared somewhere in Mavelikkara and not at the spot. It is also the case of the appellant that as evident by Ext.P4 chemical analysis report, the learned Magistrate issued a letter dated 7.8.2001 purportedly for forwarding the samples for chemical analysis, but in fact, the properties including the samples were produced before the court only on 8.8.2001. So, there is a serious mistake, which renders the chemical analysis report as unbelievable. According to the learned counsel, though the alleged seizure was effected on 4.8.2001, as per Ext.P3 property list dated 8.8.2001, the material objects were produced before the court only on 8.8.2001 and there is no explanation for the delay and therefore the sample if any produced before

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the court, the possibility of tampering the same cannot be ruled out. According to the learned counsel, the evidence of the prosecution in the present case is insufficient to show that the sample which was subjected for chemical analysis, is the one which drawn by PWs.1 and 4, when the appellant/accused was allegedly arrested. So, according to the learned counsel, the findings and the conviction recorded by the trial court are liable to be set aside.

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Per contra, the learned Public Prosecutor submitted that the evidence of Pws.1 and 4 are intact about the seizure of the contraband article and arrest of the appellant/accused. It is also the submission of the learned Public Prosecutor that, even though there is minor delay in producing the property, no prejudice is caused to the appellant/accused and therefore the trial court is perfectly correct in convicting the appellant/accused on the basis of the available evidence and materials.

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I have carefully considered the arguments advanced by the learned counsel for the appellant and the

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learned Public Prosecutor and I have perused the evidence and materials on record.

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In the light of the rival contentions and in view of the evidence and materials on record, the question to be considered is whether the trial court is correct and justified in its finding and convicting the appellant for the offence under sections 8(1) and (2) of the Abkari Act. Though Pws.3 and 4, the independent witnesses who were cited and examined by the prosecution to prove the seizure of the alleged contraband article and arrest of the accused had turned hostile, according to me, the evidence of Pws.1 and 4 shows that 750 ml. of alleged illicit arrack was seized from the accused at about 6 p.m. on 4.8.2001, since there is no glaring contradiction or infirmities in the evidence of Pws.1 and 4. The contemporary documents Exts.P1 seizure mahazar and Ext.P2 crime and occurrence report, further corroborate the evidence of Pws.1 and 4. But in a case like the present one, the mere seizure of contraband article and arrest of the appellant/accused alone are not sufficient to

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canvass a conviction for any of the offence contemplated under the Kerala Abkari Act, since the punishment contemplated under the various provisions of the Abkari act is so vigorous and rigorous. Though PW4 deposed before the court that, after the seizure of the alleged contraband article and arrest of the accused, himself and PW1 reached in the Excise Range office at Mavelikkara during the night of 4.8.2001, he has not made any deposition as to, at which place the material object including the samples were kept and who was the custodian of the same. The absence of any evidence on this aspect, according to me, assumes importance, since the so called contraband article and the samples were produced before the court only 8.8.2001, with a delay of 4 days. The said delay is not properly explained and the evidence of PW4 keeps silence as to what are the steps taken by him to keep the samples intact and to prevent any possibility of tampering the same. In this juncture it is pertinent to note that, a Division Bench of this Court in the decision in Ravi Vs. State of Kerala (2011(3)

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KLT 353) has held that “Hence, 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, absolutely no explanation is offered by PW4 for not producing the material objects including the samples before the court in time, though the same was seized on 4.8.2001. As there is no evidence regarding the safety measures adopted by PW4 in keeping the samples intact and the preventive measures taken against tampering of the same, according to me, the unexplained delay in view of the above decision, will go against the prosecution.

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It is further relevant to note that in the present case, no forwarding note or requisition was filed by the prosecution agency before the court for sending the samples for chemical analysis. However, it appears that the material objects were produced only on 8.8.2001 and on the previous date of the above production of the property, the learned Magistrate seem to have issued a letter dated

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7.8.2001, notwithstanding the fact that the samples had not been produced before the court, for forwarding the same to the chemical analysis. Besides this, it is relevant to note that PW1 or PW4 has not deposed the nature of the seal affixed on the sample bottle. No such seal is seen affixed on Ext.P1 seizure mahazar also. So, in the absence of any forwarding note or requisition providing any sample seal, according to me, there is no guarantee that the seal, said to have found tallied by the chemical examiner on the sample bottle, is the same seal affixed by PW4 while drawing the sample. So, no evidentiary value can be attached to the endorsement contained in Ext.P4 chemical analysis report, which was to the effect that the seal affixed on the sample bottle tallying with the seal provided, particularly when no sample seal is provided. So, on a perusal of the evidence and materials on record, it is crystal clear that there is paucity of prosecution evidence to show that the sample which allegedly drawn by PW4 from the alleged illicit arrack found in the possession of the appellant/accused in

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Crl.A.No.74 of 2005

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M.O.1 can, has reached in the hands of the chemical examiner. According to me, in the decision of this Court reported in 2011(3) KLT 353 , cited supra, it has held that, “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”, and this decision is attracted in the present case and the available evidence on record is not sufficient to withstand the above test, laid down by this Court.

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In the light of the above discussion and in view of the evidence and materials referred to above, particularly in view of the laches on the part of the prosecution in adducing evidence as well as due to the defect in the investigation, according to me, the appellant/accused is entitled to get the benefit of doubt and extending the same, the conviction recorded by the trial court is set aside.

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In the result, this appeal is allowed, setting aside the judgment dated 21.12.2004 in S.C.No.178/03 of the court of

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Additional Sessions Judge, Fast Track (Ad hoc-I), Alappuzha and he 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

Janardhanan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Janardhanan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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