Allowed

Sugathan v. the State of Kerala

Kerala HC28 Nov 2013CRL.A/780/2005

Case brief

AI extract

What is this about?

The High Court abandoned the conviction of the appellant for possessing illicit arrack under Section 58 of the Abkari Act. The court held that the prosecution failed to prove the chain of custody, citing lack of a forwarding note for the sample, unexplained delays in producing the contraband and sample, and failure to demonstrate safe custody, thus the appellant is acquitted.

What did the court decide?

Conviction set aside; appellant acquitted; bail bond cancelled; appellant set at liberty.

Sugathan Vs the 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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THURSDAY, THE 28TH DAY OF NOVEMBER 2013/7TH AGRAHAYANA, 1935

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CRL.A.No. 780 of 2005 ( )

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AGAINST THE JUDGMENT IN SC 1387/2001 of ADDL.SESSIONS JUDGE FOR THE TRIAL OF ABKARI ACT CASES,NEYYATTINKARA, DATED 08-04-2005

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APPELLANT(S)/ACCUSED::

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SUGATHAN, S/O. KESAVAN, CHARIVIL POTTAYIL, VENGANOOR DESOM, VENGANOOR VILLAGE THIRUVANANTHAPURAM TALUK.

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BY ADVS.SRI.P.V.ANIL SRI.M.DINESH

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RESPONDENT(S)/COMPLAINANT::

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THE STATE OF KERALA, REP. BY THE GOVERNMENT PLEADER, HIGH COURT OF KERALA.

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BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-11-2013, 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.780 of 2005

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Dated this the 28^th day of November, 2013.

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J U D G M E N T

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The sole accused in S.C.No.1387/01 of the court of Additional Sessions Judge for the trial of Abkari Act Cases, Neyyattinkara, is the appellant as he is aggrieved by the judgment dated 8.4.2005 in the above Sessions case, since he is convicted and sentenced for the offences under Section 58 of the Abkari Act.

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The prosecution case is that, at about 12 p.m. on 24.7.1999, in front of the house of one Lalitha at Venganoor Desam, Venganoor village, the accused was found in possession of illicit arrack, while carrying the same in a can and therefore according to the prosecution, the accused has committed the offence punishable under section 58 of the Abkari Act.

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With the above allegation, Crime No.75/99 was

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registered in the Excise Range, Thiruvananthapuram, and on completing the investigation thereon, a formal charge was laid in the court of Judicial First Class Magistrate-III, Neyyattinkara, wherein C.P.No.287/00 was instituted and thereafter the learned Magistrate committed the case to the Sessions court, Thiruvananthapuram, in which the above Sessions case is instituted and eventually made over to the present trail court for trial. Thus when the accused appeared, a formal charge was framed against him for the offence punishable under section 58 of the Abkari Act and the accused denied the charge when the same read over and explained to him, pursuant to which, the prosecution adduced its evidence by examining Pws.1 to 7 and producing Exts.P1 to P4 documents. The trial court finally found that the prosecution has established beyond reasonable doubt that the accused was found in possession of 1 ½ ltrs. of arrack and therefore he is held guilty under section 58 of the Abkari Act and accordingly he is convicted thereunder. On such conviction, the accused is sentenced to

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Crl.A.No.780 of 2005

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undergo rigorous imprisonment for 6 months and to pay a fine of Rs.1 lakh and in default, he is directed to undergo simple imprisonment for 2 months. Set off is allowed.

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Heard Adv.Sri.Anil P.V., the learned counsel for the appellant and Adv.Sri.N.Suresh, the learned Public Prosecutor for the State.

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Though the prosecution has cited and examined two independent witnesses, namely Pws.1 and 2 to corroborate the evidence of official witnesses, they turned hostile. PW3 is the then Preventive Officer attached to Excise Enforcement and Anti Narcotic Special Squad, Thiruvananthapuram, who detected the crime. PW5 was also working as a Preventive Officer at the relevant point of time in the very same Squad, who was one among the raiding party lead by PW3. So, in order to prove the detection of the crime, seizure of the contraband article and arrest of the accused, in the absence of independent evidence, the prosecution very much relied upon the evidence of Pws.3 and 5, the Official witnesses. When the

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above witnesses examined, they have deposed that while they were on patrol duty and when they reached that part of the Sicilipuram-Kattachakkuzhy road in front of the house of one Lalitha at Venganoor desam, Venganoor village, they saw the accused, who on seeing the Excise party, tried to escape from the spot, but he was intercepted and detained and on entertaining suspicion, the can which held by him was examined and the content therein was realised as illicit arrack. According to Pws.3 and 5, consequently the accused was arrested from the spot and the contraband article was seized then and there. According to these witnesses, the entire procedure related to the arrest of the accused and the seizure of the contraband article were recorded in a mahazar prepared at the scene of crime and on completing the above proceedings, they returned to the Excise Range office and the contraband article and the accused were entrusted with PW4, who is the then Excise Inspector of Thiruvananthapuram Excise Range. Pws.3 and 5 identified Ext.P1 seizure mahazar prepared by PW3 which was already

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marked through Pws.1 and 2. They have also identified M.O.1 can. When PW4 was examined, he had deposed about the receipt of the accused as well as the contraband article and other documents in the above case and according to him, he had prepared crime and occurrence report and thondi list for producing the contraband article before the court and also prepared remand application for producing the accused. According to PW4, on the date of the incident itself, he produced the material object and the accused before the court. Thus when PW4 was examined, Ext.P2 crime and occurrence report, Ext.P3 property list are marked through him. According to PW4, steps were taken to sent the sample for chemical analysis and thus obtained the chemical analysis report, which is marked through him as Ext.P4. PW6 is the then Excise Inspector of the very same Excise Range Office, who on completing the investigation, laid the charge. PW7 is the thondi clerk of the court of Judicial First Class Magistrate-III, Neyyattinkara and she was examined to prove the sampling and thus she

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had deposed before the court that she had drawn the sample and sent it for chemical analysis. It is on the basis of the above evidence, the trial court has convicted the appellant.

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Learned counsel for the appellant vehemently submitted that, in the present case, no forwarding note is produced by the prosecution and as such, there is no link evidence to show that Ext.P4 chemical analysis report represents the contraband article allegedly seized from the possession of the appellant. After taking me through the evidence of PW4, it is contended by the learned counsel that, PW4 when examined, has submitted that the seal seen on M.O.1 is not the seal affixed by him. According to the learned counsel, the evidence of PW7 is not sufficient to establish that, a proper sample was drawn with authority. According to the learned counsel, the contraband article was reached in the court only on 25.7.1999, even though PW4 claimed that he had produced the samples on the same day itself. It is also the contention of the learned counsel that, though Ext.P4 report refers to a letter dated 4.8.1999

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of the Committal Magistrate by which the sample was forwarded, the sample reached in the laboratory only on 6.8.1999 and there is a delay of 2 days, for which also, there is no explanation. So, according to the learned counsel, in view of the above points, the court below ought not have convicted the appellant, but by extending the benefit of doubt, ought to have acquitted the accused/appellant. Per contra, the learned Public Prosecutor submitted that the evidence of Pws.3 and 5 positively prove the seizure of the contraband article from the physical possession of the appellant and also that the contraband article had reached in the court without delay and the sample was drawn at the instance of the committal court and therefore Ext.P4 chemical analysis report can be accepted as legal. Thus according to the learned Public Prosecutor, the court below accepted the evidence of prosecution after its due appreciation and came into the correct conclusion, by which the appellant is convicted and therefore no interference is warranted.

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

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In view of the rival contentions and in the light of the available evidence and materials on record, the question that arose for consideration is whether the conviction recorded by the trial court is maintainable. In the present case, as I indicated earlier, to prove the involvement of the accused and to show that the contraband article was seized from the possession of the accused, there is absolutely no independent evidence. Therefore, prudence demands a close scrutiny of the evidence of the official witnesses. In the evidence of Pws.3 and 5 with respect to the alleged seizure, there is no much controversy and their evidence in this respect remained intact. But in a prosecution for the offence under the Provisions of the Abkari Act, the duty of the prosecution will not be completed by the seizure of the article from the accused. The prosecution has to further

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establish by adducing cogent evidence that, what seized from the possession of the accused are contraband article, as far as offence under Section 55 or 58 are concerned. Thus on examination of the prosecution allegation, it appears that according to Pws.3 and 5, after effecting the seizure and arrest of the accused, they produced the accused, the seized articles and the documents before the Excise Inspector of Thiruvananthapuram Excise Range, who is examined in the present case as PW4. PW4 has deposed that after preparing Ext.P2 crime and occurrence report, Ext.P3 thondi list and remand application, on the same day ie., on 24.7.1999 itself, he had produced the accused as well as thondi article before the court. But it is pertinent to note that, as per the endorsement contained in Ext.P3 thondi list, the same were produced in the court only on 25.7.1999. PW7-thondi clerk has also stated that the thondi article received in the court only on 25.7.1999. So, the above version of PW7 and the endorsement contained in Ext.P3, go against the claim of PW4. So, the net result is that though

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PW4 received thondi article on 24.7.1999, as claimed by him, he did not produce the same on that day itself, and at the very same time, PW4 failed to give any account as to who was the custodian of the same till it is produced before the court on 25.7.1999. He had also not given any evidence as to what are the precautionary steps taken by him to preserve the thondi article intact and to rule out tampering of the same. Normally, it cannot be said that there is any delay in producing the thondi article, since the occurrence was on 24.7.1999 and the article was produced on 25.7.1999. But PW4 has stated that he had produced the thondi article on the same day itself, which claim of PW4 is not tallying with the other evidence of prosecution witness and the prosecution material. Therefore, even though the delay is only one day, especially when PW4 failed to give any account as to the steps taken by him to keep the thondi article in safe custody and to prevent the tampering, according to me, even though the delay is only one day, the same will go against the prosecution. A Division Bench of

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this Court in a decision reported in Ravi Vs. State of

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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 a Single Bench decision reported in Rajendran Vs. State of

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Kerala (2007(1) KLT 971) it has held that, “In the absence of any evidence to prove that residue and sample were kept in proper custody till date of producing same before court, chance of tampering with sample taken and reside seized cannot be ruled

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out.” The same preposition is laid down in the decision reported in Narayani Vs. Excise Inspector (2002(3) KLT 725) . In the light of the above decisions and in the light of the delay in producing the contraband article and the absence of evidence to show proper and safe custody of contraband article, the benefit of doubt goes in favour of the appellant.

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The delay and paucity of evidence about the safe custody of the contraband article, are material and relevant

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in the present case in view of the other attended circumstances involved in the case. In the present case, no sample was drawn from the scene of crime. But according to the prosecution, the sample was drawn by PW7, the thondi clerk of the committal court. According to me, the evidence of PW7 will no way helpful for the prosecution to show that proper sample was drawn by her with any authority and sent the same for chemical analysis. In the present case, as pointed out by the learned counsel, no forwarding note is produced and marked by the prosecution. So, absolutely there is no evidence as to, on what authority PW7 had drawn the sample. It is relevant to note that though PW7 has claimed that the learned Magistrate had issued an order and forwarding note, no document is produced or marked by the prosecution to substantiate the above claim of PW7. Further, it is relevant to show that in the evidence of PW7, there is no details as to the safety

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measures taken by her for drawing a proper sample. No evidence as to the bottle in which the sample was taken and there is no description of such bottle and she has not stated whether she had assured that, the sample bottle contains no other element before drawing sample to the said bottle and as to the quantity of sample drawn by her and the safety measures adopted by her to keep the sample intact to prevent any tampering. Thus, to prove proper sampling, there is absolutely no evidence. Connected with it, it is relevant to note that as pointed out by the learned counsel for the appellant, as seen from Ext.P4 chemical analysis report, the learned Magistrate by his letter dated 4.8.1999, has allegedly forwarded the sample, but the same reached in the chemical laboratory only on 6.8.1999. Though the court is situating at Neyyattinkara and the chemical laboratory is at Thiruvananthapuram, it was for the prosecution to prove and explain why two days' time was taken to reach the sample in the laboratory, particularly when the court and the laboratory are situating in the same

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District. Since PW7 has miserably failed to depose anything about the safety measures taken by her with respect to the sample, the tampering of the sample cannot be ruled out in the above given circumstances. In the very same Division Bench decision reported in 2011(3) KLT 353 , which is 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 foolproof condition.” In view of the defects pointed out earlier, it cannot be said that the prosecution has succeeded to show that the sample reached in the laboratory in a foolpoof condition.

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In the light of the above facts and circumstances and the nature of evidence, particularly in the light of the above decisions, according to me, the prosecution has not proved its case against the appellant beyond reasonable doubt, and the trial court has miserably failed to consider those vital defects in the prosecution case and erroneously

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entered into a finding against the appellant. Hence, the findings of the court below and the conviction recorded by it against the appellant are set aside, by extending the benefit of doubt in favour of the appellant.

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In the result, this appeal is allowed setting aside the judgment dated 8.4.2005 in S.C.No.1387/01 of the court of Additional Sessions Judge for the trial of Abkari Act Cases, Neyyattinkara, and the appellant 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

Sugathan v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Sugathan v. the State of Kerala

Case brief

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What did the court decide?

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