Allowed

Saraswathi v. State of Kerala

Kerala HC10 Jan 2014CRL.A/1630/2003

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and acquitted the appellant after finding that the prosecution failed to prove beyond reasonable doubt that the seized material was illicit arrack due to absence of evidence regarding the drawing and preservation of the sample.

What did the court decide?

Appellant acquitted; previous conviction set aside; bail bond cancelled; appellant set at liberty.

Saraswathi Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2014)

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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 10TH DAY OF JANUARY 2014/20TH POUSHA, 1935

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CRL.A.No. 1630 of 2003

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AGAINST THE ORDER/JUDGMENT IN SC 1261/2000 OF ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-I), THIRUVANANTHAPURAM DATED 19-09-2003

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APPELLANT:ACCUSED :

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SARASWATHI, AGED 45, D/O.VANAJAKSHY, MANAKKATTUVILAKOM VEEDU, PATHEKKER COLONY, ATTIPRA MURI, ATTIPRA VILLAGE, THIRUVNANTHAPURAM.

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BY ADV. SRI.BLAZE K.JOSE

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RESPONDENT:

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

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BY PUBLIC PROSECUTOR SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.1630 of 2003

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Dated this the 10^th day of January, 2014

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JUDGMENT

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The appellant, who is a lady preferred this appeal against the judgment dated 19/9/2003 in S.C.No.1261 of 2000 of the court of the Additional Sessions Judge (Fast Track-I), Thiruvananthapuram as she is aggrieved by the conviction and sentence imposed on her by the above judgment for the offence under Section 55(a) of the Abkari Act.

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The prosecution allegation is that, on 02/08/1999 at about 12.30 p.m., the accused was found in possession of 9 litres of arrack in a can, near the property of one Prakash on the Western side of the lane leading to Pathekkar colony and near to the said colony in Attipra Village and thereby the accused has committed the offence punishable under Section 55(a) of the Abkari Act. On the above allegation, Crime No.51 of 1999 was registered in the Thumpa Police Station for the said offence and on completing the investigation, a formal report was filed in the Judicial First Class Magistrate Court-II,

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Thiruvananthapuram wherein the same was taken on file as C.P.No.87 of 2000 and subsequently by order dated 25/9/2000 the learned Magistrate committed the case to the Sessions Court wherein S.C.No.1261 of 2000 was instituted and subsequently made over to the present trial court for disposal.

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Thus, when the accused appeared after furnishing the prosecution materials to her and hearing the prosecution as well as the defence a formal charge was framed against her for the offence punishable under Section 55(a) of the Abkari Act which was when read over and explained to the accused, she denied the same and pleaded not guilty and therefore the trial was proceeded further, during which PWs.1 to 5 are examined and Exts.P1 to 7 documents are marked. MO.1 plastic can is also identified as material object. The memorandum of evidence in this case consists of the deposition of the defence witnesses, DWs.1 to 3 as well. The trial court finally concluded that the prosecution has fully succeeded in establishing its case and thus found that the

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Crl.A.No.1630 of 2003

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accused had committed the offence punishable under Section 55(a) of the Abkari Act and accordingly she is convicted thereunder. On such conviction she is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rupees One lakh and in default of payment of fine, she is directed to undergo rigorous imprisonment for six months. Set off is allowed under Section 428 of Cr.P.C. It is the above finding, conviction and sentence that are challenged in this appeal.

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Though the appeal is preferred through Adv.Sri.Blaze.K.Jose, when the case is taken, he is represented by Adv.Smt.Neethu Prem and accordingly I heard her and Sri.N.Suresh, the learned Public Prosecutor.

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Among the prosecution witnesses examined, PWs.1 to 3 are the police officials involved in the detection of the crime and seizure of the alleged contraband article and the arrest of the accused and to prove the above facts besides them an independent witness, namely, PW.4 is also examined,

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but he turned hostile towards the prosecution. Therefore, the prosecution is constrained to heavily depend upon the evidence of PWs.1 to 3 to prove the above fact. PW.1 is the then Police Constable and PW.2 is the then Sub Inspector of Police, Thumpa Police Station whereas PW.3 is a Woman Police Constable attached to Vanitha Police Station, Thiruvananthapuram. When these witnesses were examined, they have deposed more or less in the same passion supporting the prosecution allegation. According to these witnesses, PW.2 on 02/08/1999 at about 12 a.m. got information that one lady is selling arrack in Pathekkar colony and thus PW.2 accompanied by PWs.1 and 3 reached the place of occurrence and thus PW.2 saw the accused standing on the Western side of the road leading to Pathekkar colony with a black can in her hand and on seeing her according to PW.2 and other witnesses they approached the lady and on questioning her she had stated that the can contained arrack and the same kept for sale. Thus, according to the prosecution witnesses, PW.2 after

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opening the can the liquid contained taken on his hand and by tasting and smelling the same is identified as arrack. It is the further case of these witnesses that as the accused was found handling and possessed illicit arrack she was arrested with the help of PW.3 at about 12.30 P.M. and the can having capacity of 10 litres and the arrack contained thereunder were seized. According to these prosecution witnesses, the entire proceedings towards locating the accused and interception with her, inspection of the can, arrest of the accused, seizure of the contraband article and the material objects are recorded elaborately in a mahazar prepared at the spot. According to these witnesses, on completing the proceedings, they returned to the Police Station and the case as Crime No.51 of 1999 of Thumpa Police Station was registered and the properties and the material objects were produced before the court after preparing a property list and received the chemical analysis report on analysis of the sample drawn from the contraband article allegedly seized from the possession of the accused. As

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MO.1 can got damaged and the cap of the same missing, a report was filed to that effect. Thus, when PW.1 was examined, he had identified MO.1 can as the can which was seized from the possession of the accused and when PW.2 was examined, he had identified Ext.P1 mahazar, Ext.P2 F.I.R. and Ext.P3 property list prepared by him. He had also identified Ext.P4 chemical analysis report and Ext.P5 report referred to above. PW.3-the woman police constable when examined, she had deposed that on the request of PW.2 she joined with PWs.1 and 4 for the seizure effected in the present case and it was she who physically arrested the accused who is a lady connected with such seizure. As I indicated earlier, PW.4 the independent witness in this case turned hostile towards the prosecution and thus during his examination, Exts.P6 and P7, which are contradictory portions of his 161 statement marked through him. PW.5 is the then S.I. of Police, Thumpa Police Station, who finally laid the charge. These are the evidences and materials considered by the trial court and referred to in

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the judgment in support of his finding and to convict the appellant.

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Adv.Smt.Neethu Prem vehemently submitted that, the prosecution has miserably failed to establish and prove the exact place of occurrence in the present case since in view of the admitted facts of the prosecution witness and the evidence adduced through DWs.1 to 3 there is no such place of occurrence as claimed by the prosecution in the present case. The learned counsel by referring to the place of occurrence as alleged by the prosecution it is submitted that the property of Prakash mentioned in Ext.P1 mahazar and in the deposition of PWs.1 to 3 is situating exactly on the Eastern side of the lane leading to the Pathekkar colony and not on the Western side as claimed by the prosecution. It is also pointed out by the learned counsel that, to establish the prosecution case though they have approached the court by filing an application for appointing an Advocate Commissioner, such petition was dismissed. Thus, according to the learned counsel, about the

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exact place of occurrence, there is no satisfactory evidence. It is also the contention of the learned counsel that, the accused was not arrested from the place of occurrence as alleged by the prosecution and the prosecution has also failed to produce independent evidence and therefore the trial court is wrong in convicting the appellant accepting the interested version of PWs.1 to 3 and 5. Another important contention advanced by the learned counsel is that, in the present case absolutely there is no evidence as to who drawn the sample and how the same was drawn and what are the measures taken to preserve the samples in tact and preventing from tampering of the same. In support of the above contention the learned counsel placed reliance upon the decision of this Court in Nalinakshan Vs. State of Kerala [2012 (4) KLT 575] .

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Per contra, the learned Public Prosecutor submitted that, the evidence of PWs.2 and 3 are in tact and the trial court is absolutely correct and fully justified in convicting the appellant accepting the evidence of PWs.1 to 3, who involved

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in the detection of the crime. According to the learned Public Prosecutor in the absence of any contradictions or infirmities or doubt in the evidence of PWs.1 to 3, the hostile attitude of the independent witnesses no way affect the credibility of these official witnesses and the correctness of the prosecution case. It is also contended by the learned Public Prosecutor that the factum of seizure is proved by the prosecution by adducing clear and cogent evidence and therefore the slight difference occurred in the description of the property did not affect the core of the prosecution case. So, 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 and the 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 the light of the evidence and materials on record, the question to be considered is, whether the conviction recorded by the trial

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court against the appellant is sustainable. Though the learned counsel for the appellant advanced several arguments in support of her plea for acquittal, having regard to the facts and circumstances involved in the case except on one point about the absence of evidence regarding the drawing of sample, according to me, this Court need not consider the other aspect and the same can be left open. As far as the Abkari offence is concerned, particularly, when Section 55 (a) is alleged against the accused, it is the un-shifted burden of the prosecution to prove positively, particularly in this case when the allegation is that the accused was found in possession of the illicit arrack that what seized from the possession of the accused, nothing but arrack. So, it is upon the prosecution in the present case to prove that the can which was allegedly seized from the possession of the accused was containing illicit arrack which is prohibited in the State of Kerala. Even if the other aspect of the prosecution case is admitted as true and proved particularly about the arrest of the accused and the seizure of

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the material objects, no conviction can be entered into unless the prosecution has established beyond reasonable doubt that the material object seized from the accused is illicit arrackcontraband article.

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In the present case, the prosecution has no case that, on seizure of MO.1 can with the liquid contained therein and the arrest of the accused, any of the officials involved in the arrest and seizure of the material objects, drawn sample from the can in which it is allegedly contained the illicit arrack, from the spot and produced such a sample before the court for sending the same for chemical analysis. From the version of PWs.1 to 3 particularly in the evidence of PWs.2 and 5, their case is that they made request before the court to draw sample from MO.1 can and to send the same for chemical analysis. Suffice to say, no forwarding note or requisition prepared and filed before the court to substantiate the above claim. In the absence of such documentary evidence, this Court failed to understand on what ground and on what basis Ext.P4 report

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was obtained in the present case. It is further relevant to note that, as rightly contended by the learned counsel for the appellant absolutely there is no evidence as to the person who draw the sample from MO.1 can and when was the sample drawn and what was the precautionary measures taken by such person to draw the samples properly. There is also no evidence as to what are the measures adopted by the person who drawn the sample to keep the samples in tact and the further steps taken to prevent any kind of tampering the sample. In the absence of evidence in this regard, tampering of the sample cannot be ruled out. A Division Bench of this Court in the decision reported in Ravi Vs. State of Kerala [2011 (3)KLT 353] has held that, 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. On examination of the facts and circumstances involved in the case and the evidence and materials on record in the light of the above

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decision, it can be seen that there is no evidence to ensure that the sample reached the hands of the chemical examiner in a fool proof condition and such sample was drawn from the contraband article allegedly seized from the possession of the accused. A learned Single Judge of this Court in Nalinakshan Vs. State of Kerala [2012 (4) KLT 575] has held that, in the absence of evidence as to the taking of sample and following steps conviction is bad. Therefore, on the sole ground of paucity of evidence as to the taking of sample and the further steps pursuant to the same, the appellant is entitled to get an acquittal.

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In the light of the above discussion and in view of the authorities referred to above and in view of the evidence and materials on record, I am of the view that, the prosecution has miserably failed to prove its allegation that the accused was found in possession of illicit arrack so as to attract Section 55 (a) of the Abkari Act and therefore I am unable to concur the finding and conviction recorded by the trial court against the

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appellant. Accordingly, the conviction recorded by the trial court against the appellant is set aside.

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In the result, this appeal is allowed setting aside the judgment dated 19/9/2003 in S.C.No.1261 of 2000 of the court of the Additional Sessions Judge, Fast Track-I, Thiruvananthapuram and the appellant is acquitted of all the charges levelled against her and the bail bond, if any, executed by her stands cancelled and she is set at liberty. If the appellant had already deposited any amount in the court below in terms of the order dated 30/9/2003 of this Court in Crl.M.Appln.No.10020 of 2003 in the above appeal, the same shall be released forthwith to the appellant on moving an application in this regard.

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V.K.MOHANAN, JUDGE

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skj

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True copy P.A. to Judge

Saraswathi v. State of Kerala

Case brief

What is this about?

What did the court decide?

Saraswathi v. State of Kerala

Case brief

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What did the court decide?

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