Allowed

Narayanan v. State of Kerala

Kerala HC12 Mar 2013CRL.A/98/2006

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal appeal, setting aside the conviction for illicit distillation. The court held the prosecution failed to prove the chain of custody for the seized wash and that official witness evidence was unreliable due to inconsistencies and lack of corroboration.

What did the court decide?

The appeal is allowed; the impugned judgment of conviction is set aside; the appellant is set at liberty; the bail bond stands cancelled.

Narayanan Vs State of Kerala — Pension and Retirement Benefits | 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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TUESDAY, THE 12TH DAY OF MARCH 2013/21ST PHALGUNA 1934

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CRL.A.No. 98 of 2006 (F)

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AGAINST THE ORDER/JUDGMENT IN SC.396/2004 of ADDITIONAL SESSIONS FAST TRACK COURT-I, PALAKKAD DATED 05-01-2006

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APPELLANT/ACCUSED:

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NARAYANAN, S/O.KANDAN KALI, THARAMEL VEEDU, KOOTANAD DESOM, CHALISSERY VILLAGE, OTTAPPALAM TALUK.

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BY ADVS.SRI.P.VIJAYA BHANU

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SRI.PRASUN.S

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RESPONDENT/COMPLAINANT.:

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

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PUBLIC PROSECUTOR SMT.V.H.JASMINE

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.98 of 2006

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Dated this the 12^th day of March, 2013

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JUDGMENT

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In this appeal the appellant challenging his conviction and sentence imposed on him, vide judgment dated 05/01/2006 in S.C.No.396 of 2004 of the court of the Additional Sessions Judge Fast Track Court-I, Palakkad, by which the appellant is found guilty for the offence under Section 55(g) of the Kerala Abkari Act.

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The prosecution case is that, at about 1.30 p.m. on 03/08/1998 the accused was found carrying 12 litres of wash, in a pot for the purpose of distilling illicit arrack, in his possession through the road in front of the house of one Karath Kunjukutty in Koottand desom in Chalisery Village in Ottappalam Taluk. Thus, according to the prosecution the accused has committed the offence punishable under Section 55(g) of the Kerala Abkari Act and accordingly Crime No.24 of 1998 was registered in the Thrithala Excise Range. On completing the

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investigation, a report was laid in the Judicial First Class Magistrate Court, Pattambi. Accordingly, C.P.No.17 of 2004 was instituted and finally the learned Magistrate committed the case to the Sessions Court by his order dated 26/08/2004. Based upon this, S.C.No.396 of 2004 was instituted in the Sessions Court and finally made over the case to the present trial court for trial and disposal. 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 Section 55(g) of the Kerala Abkari Act which, when read over and explained to the accused, he denied the same and pleaded not guilty, which resulted in the further trial of the case, during which PWs.1 to 5 were examined and Exts.P1 to P7 were marked from the side of the prosecution. MO.1 pot is identified and marked. The trial court finally found that the prosecution has succeeded to prove beyond doubt that the accused carried wash for the purpose of manufacturing arrack in his possession and accordingly found guilty for the

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offence charged against him and thus the accused is convicted for the offence punishable under Section 55(g) of the Kerala Abkari Act and on such conviction he is sentenced to undergo rigorous imprisonment for two years and to pay fine of `1,00,000/- and in default of payment of fine, he is directed to undergo rigorous imprisonment for six months. Set off is allowed. Challenging the above finding, conviction and sentence, the present appeal is preferred.

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I have heard Sri.Vijaya Bhanu, the learned Senior counsel for the appellant and the learned Public Prosecutor.

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The prosecution allegation reveals through its witnesses and documents. As I indicated earlier, out of five prosecution witnesses, PWs.1, 2 and 5 are the official witnesses, whereas PWs.3 and 4 are the independent witnesses, who turned hostile to the prosecution.

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PW.1, the then Excise Inspector and PW.2, the then Excise Guard who accompanied PW.1 are the officials cited and examined by the prosecution to prove

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the incident. When these witnesses were examined, they have deposed that, while they were on usual patrol duty, reached at 1.30 p.m. on 03/08/1998 in front of the house of one Karath Kunjukutty, situated on the panchayat road, they found the accused/ appellant coming in their opposite direction from the southern side of that panchayat road, holding a pot having 13 litres capacity and on suspicion the accused was intercepted and on inspection it was found that the said pot contained 12 litres of wash, a raw material for the purpose of illicit distillation of arrack. Thus, according to the above witnesses, the accused was arrested and the contraband articles were seized then and there. When PW.1, the then Excise Inspector examined, he had deposed in terms of the above case of the prosecution and during his examination Ext.P1 seizure mahazar, Ext.P2 arrest memo are marked. According to PW.1, after the arrest of the accused and the seizure of the contraband article, they reached the Thrithala Excise Range office and accordingly registered a crime as Crime No.24 of 1998 of

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Thrithala Excise Range and PW.1 has further deposed that he prepared the Crime and Occurrence report and after preparing forwarding note produced contraband articles and documents in the committal court for getting chemical examination report. Thus, Ext.P3 crime and occurrence report, Ext.P4 forwarding note and Ext.P5 chemical examination report are marked through PW.1. When PW.2, the then Excise Guard attached to Thrithala Excise Range, examined, he had deposed in tune with the deposition of PW.1 supporting the prosecution case.

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As I indicated earlier, though the prosecution has cited PWs.3 and 4 as independent witnesses to prove the seizure and arrest of the accused, they turned hostile to the prosecution, though they admitted their signature in Ext.P1 seizure mahazar.

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It was PW.5, the then Excise Inspector who undertook the further investigation. After inspecting the place of occurrence, he had prepared Ext.P6 scene mahazar and also got prepared Ext.P7 sketch mahazar and those documents were marked through PW.5 during

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his examination. These are the evidences and materials referred to by the learned Judge of the trial court in support of his finding and for convicting the appellant.

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The learned counsel vehemently submitted that, to prove the involvement of the accused and the seizure of the contraband article from his possession absolutely there is no legally acceptable evidence. To substantiate the above contention, it is poined out by the learned counsel that the contraband article allegedly seized from the possession of the appellant has not produced before the court. According to the counsel, for the first time the prosecution, during the trial, put forwarded a new case that the contraband articles were destroyed and such destruction was not reported to the court by filing any document. It is also pointed out that the contemporary document, other than seizure and arrest, came into existence immediately after the alleged seizure is Ext.P3 crime and occurrence report wherein also the prosecution has not mentioned about the destruction of the contraband article allegedly seized from the

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possession of the appellant. It is pointed out by the learned counsel that, when PW.1 was examined, he had deposed before the court about the fact with respect to the destruction of the contraband article had stated before PW.5 the investigating officer when he questioned PW.1. But PW.5 during his examination deposed before the court that PW.1 never made such a statement before him. Another point in support of the above contention is that, on the label alleged to have been pasted on the MO.1 pot the prosecution has not got the signature of the independent witness and therefore in support of the claim of the prosecution there is no independent evidence at all. It is also pointed out by the learned counsel that no property list is filed before the court as a contemporary document to substantiate the claim of the prosecution about the item seized from the possession of the accused/ appellant. Thus, in substance, the first contention of the appellant is that there is no physical evidence or any acceptable documentary evidence to prove that, what was seized from the possession of the accused. The second

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contention taken by the learned counsel for the appellant is that the prosecution has miserably failed to show that Ext.P5, chemical analysis report is representing the contraband article allegedly seized from the possession of the appellant and therefore in the light of the decision reported in Ravi Vs. State of Kerala [2011 (3) KLT 353], the prosecution has miserably failed to prove the allegation against the accused beyond reasonable doubt. Towards substantiating the above contention, it is pointed out that, even though no property list was produced before the court, the prosecution in Ext.P4, forwarding note, has not mentioned as to what way the property referred as Item No.208 of 1998 and therefore according to the learned counsel, there is no link evidence to show that, what reached the hands of the chemical examiner is the sample drawn from the contraband article allegedly seized from the possession of the appellant. So, according to the learned counsel the findings of the court below is absolutely incorrect and available evidence and materials are not sufficient to prove the prosecution

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allegation and therefore the appellant is entitled to get the benefit of doubt and the trial court has failed to extent that benefit. Hence, the judgment of the trial court is liable to be set aside.

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On the other hand, the learned Public Prosecutor submitted that the evidence of PWs.1 and 2, the excise officials, who involved in the detection of the crime, are intact and though they were subjected to cross-examination, nothing brought on record to disbelieve their evidence and further the oral evidence of PWs.1 and 2 are supported by documentary evidence which are referred to above. It is also the contention of the learned Public Prosecutor that PW.1 has deposed before the court that, after drawing the sample, the remnants in MO.1 pot have already been destroyed and for a conviction, it was unnecessary to produce the cotraband article before the court. Thus, according to the learned Public Prosecutor, the contentions advanced on behalf of the appellant, are not legally and factually sustainable. Hence, no interference is warranted with

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the judgment of the trial court.

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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 judgment of the trial court and the evidence on record.

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In view of the arguments and the evidence and materials on record, the question to be considered is whether the trial court is justified in convicting the appellant for the offence punishable under Section 55(g) of the Kerala Abkari Act and whether the prosecution has succeeded in proving its case against the appellant beyond reasonable doubt. As I indicated earlier the prosecution mainly depends upon the evidence of PWs.1 and 2 to prove the detection and arrest of the accused since PWs.3 and 4 have turned hostile. There is no illegality in convicting the accused on the basis of the evidence of the official witnesses even in the absence of any independent evidences, provided the official witnesses are free of doubt and contradiction and infirmities and especially when the same are sufficient to

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inspire confidence. In the present case, it is relevant to note, as pointed out by the learned counsel for the appellant, though the prosecution allegation is that the accused was found in possession of 12 litres of wash, the said contraband article is not produced before the court and no property list is produced. As rightly pointed out by the learned Public Prosecutor, the contraband article being wash, 12 litres in quantity, the same need not be produced as such. But, there is no illegality in producing the same. If the same is not produced and destroyed, according to me, it was incumbent upon the prosecution to report the said fact at the earliest opportunity, but, in the present case that was not done. No property list is produced. In Ext.P3, crime and occurrence report also there was no whisper to that effect. It is for the first time PWs.1 and 2 say that these contraband articles were destroyed. It is relevant to note that, though PW.1 has deposed before that court, he had stated before the investigating officer about the destruction of the contraband article, during the examination of PW.5, he

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had categorically denied the said claim of PW.1. So even about the destruction of the contraband article, there is no legally acceptable evidence.

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With respect to the seizure of the contraband article and the arrest of the accused, according to me, the evidence of PWs.1 and 2 are not tallying with each other. There is no whisper in the evidence of PW.1 to the effect that the accused ran away on seeing them and they chased him and arrested after 15 mtrs. away from the spot at which they found the accused. On the other hand, PW.2 says that on seeing the excise party the accused ran away from the spot and chased the accused about 15 mtrs. and thereafter the accused was intercepted. So about the incident and the arrest of the accused the evidences of PWs.1 and 2 are not tallying. It is under the above circumstances, according to me, the necessity of independent evidence, but, in the present case PWs.3 and 4 turned hostile and as such there is no independent witness to corroborate the evidence of PWs.1 and 2. Accordingly, when PW.5 had denied the statement

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allegedly to have been made by PW.1 about PW.5 about the destruction of the contraband article the evidence of PW.1 cannot be accepted as correct. So, with respect to the alleged incident and arrest and seizure of the accused, there is no reliable evidence.

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Another contention raised by the learned counsel for the appellant is that there is no link evidence to show that Ext.P5, chemical analysis report represent the contraband article allegedly seized from the possession of the appellant. I have gone through the documents especially Ext.P4 forwarding note and the letter forwarded from the committal court. In this case it is relevant to note that, as I have indicated earlier, neither a property list nor any document with description of the contraband article has been filed before the court below. It is true that, in the letter issued from the court below the crime number and the item number are mentioned. But it is seen that the quantity of the sample and the nature of the property sent for chemical analysis re-written after scoring the typed written entries. From

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the receipt issued by the chemical examiner, it appears that they have not mentioned the property item instead of stating the three crime numbers. So, as rightly pointed out by the learned counsel for the appellant, it cannot be said that Ext.P4, forwarding note is referring the property item, as shown in the letter of the learned Magistrate. According to me, the above facts and circumstances are not sufficient to withstand the test laid down by this Court in the decision reported in Ravi Vs. State of Kerala [2011 (3) KLT 353], wherein a division bench of this Court has held that, the prosecution has a duty to prove that it was the sample taken from contraband liquor seized from accused which had reached the hands of chemical examiner in a fool proof condition.

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So, in the absence of any evidence, particularly with respect to the destruction of the contraband article allegedly seized from the possession of the appellant and in the absence link evidence to show that Ext.P5 represents the contraband article allegedly taken from the possession of the accused, it cannot be said the

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prosecution has succeeded in proving its case beyond reasonable doubt against the appellant. Therefore, the appellant is entitled to get that benefit. But the trial court has failed to extent that benefit in favour of the appellant. Hence, I am unable to approve the conviction recorded by the court below against the appellant and accordingly the same is set aside.

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In the result, this appeal is allowed setting aside the judgment dated 05/01/2006 in S.C.No.396 of 2004 of the court of the Additional Sessions Judge Fast Track Court-I, Palakkad acquitting the appellant/ accused 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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V.K.MOHANAN, JUDGE

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skj

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True copy P.A. to Judge

Narayanan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Narayanan v. State of Kerala

Case brief

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