Allowed

K.M.Joseph v. Kerala State

Kerala HC2 Dec 2014CRL.A/1989/2003

Case brief

AI extract

What is this about?

In this criminal appeal against conviction under the Abkari Act, the High Court set aside the judgment of conviction. The court held that the prosecution failed to establish the accused's ownership or possession of the premises, failed to produce the residue of seized contraband, and did not prove the samples were tamper-proof. These deficiencies amounted to a failure to prove the accused's connec

What did the court decide?

The judgment of conviction dated 22.11.2003 dated S.C.No.54 of 2001 was set aside and the bail bond of the appellant was cancelled.

K.M.Joseph Vs Kerala State — Criminal Trial and Appeal | 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 C.T.RAVIKUMAR

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TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936

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CRL.A.No. 1989 of 2003 ( )

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AGAINST THE JUDGMENT IN SC 54/2001 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD

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APPELLANT(S):ACCUSED

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K.M.JOSEPH @ THANKACHAN @ VITTIL THANKACHAN AGED 32, S/O.MATHEW, KARIKKAKUNNEL HOUSE ODAPPALLI, PALAVAYAL VILLAGE

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BY ADVS.SRI.M.Y.VARGHESEKUTTY SRI.P.JIMMY JOHN

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RESPONDENT(S):

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STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE CHITTARIKKAL POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.T. RAVIKUMAR, J.

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==========================

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Crl.Appeal No.1989 OF 2003

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==========================

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Dated this the 2^nd day of December, 2014

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JUDGMENT

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The appellant was the accused in S.C.No.54 of 2001 on the files of the Court of the Additional Sessions Judge, (Adhoc-I), Kasaragod. He was tried for offence punishable under section 55(a) of the Abkari Act and was found guilty, convicted and sentenced to undergo rigorous imprisonment for 3½ years and to pay a fine of `1 lakh. In default of payment of fine, he was ordered to undergo rigorous imprisonment for a further period of three months. This appeal is directed against the said judgment of conviction. The case of the prosecution is that PW4, the Sub Inspector of Police, Chittarikkal Police Station along with PC Nos.941 and 972 went for abkari raid towards Nallompuzha, Kannivayal etc. on 11.6.2000. At about 17.30 hours, he reached Palavayal and then he received an information regarding the illegal sale of liquor in the house of the accused. Thereupon, he prepared Ext.P7 advance search memo and after

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recording the reason why he could not wait for a search warrant, he proceeded to conduct a search in the house of the accused. In fact, on 11.6.2000 at about 17.30 p.m, he reached Palavayal along with PC Nos.941 and 972 and on search seized 43 bottles of King George Grape Brandy, each of 180 ml capacity, in the bedroom situated on the southern side of his house bearing No.EEP VI/402 situated in Odappally of Palavayal Village. He seized the contraband liquid as mentioned above after describing them in Ext.P1 search list. Two bottles were taken as sample and they were sealed and labelled. Thereupon, PW4 arrested the accused and took the contraband article and the samples along with the accused to the police station and then, registered Ext.P4 FIR. Evidently, he himself conducted the investigation. PW4 prepared Ext.P5 forwarding note dated 11.6.2000 and forwarded the samples for chemical analysis. Ext.P6 is the chemical analysis report dated 31.8.2000 certifying that the contents of the bottles sent for chemical analysis contained ethyl alcohol. In the

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first sample bottle 35.38% by volume of ethyl alcohol was detected and in the second sample bottle 35.51 % by volume of ethyl alcohol was detected. After completing the investigation he laid the final report for commission of the offence punishable under section 55(a) of the Abkari Act. The Court of Judicial First Class Magistrate, Hosdurg committed the case to the Sessions Court, Kasaragod and from there it was made over to the Court of Assistant Sessions Court, Kasaragod. Later, it was withdrawn and transferred to the Court of Additional Sessions Judge (Ad hoc-I), Kasaragod for final trial and disposal. After preliminary hearing charge under section 55(a) of the Abkari Act was framed, read over and explained in Malayalam to the accused. He pleaded not guilty.

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2.To establish the charge, the appellant herein examined PW1 to PW4 and marked Exts.P1 to P7. On closing the prosecution evidence, the appellant was examined under section 313 of the Code of Criminal

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Procedure and he denied all the incriminating circumstances put to him. On behalf of the appellant, Ext.D1 was marked. It was after hearing the arguments and appreciating the evidence on record that the appellant was found guilty, convicted and sentenced as aforesaid.

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3.I will analyse the evidence on record. PWs 1 and 2 are the independent witnesses. PW1 would admit his signature in Ext.P1 search list and PW2 would admit his signature in Ext.P2 scene mahazar. At the same time, they turned hostile to the prosecution and they had categorically deposed to the effect that they had not seen the accused even at the time of seizure of the contraband liquor and also at the time of preparation of the scene mahazar. PW3 is the secretary of the East Eleri Grama Panchayat who issued Ext.P3 ownership certificate to establish that the building bearing No.EEP VI/402 from where the contraband liquid was seized belongs to the accused. PW3 during cross examination deposed to the effect that the building in

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question belonged to the person whose name was found therein and admittedly, as on 20.6.2000 one Thankachan Karikkakunnel was shown as the owner of the house. He would also depose to the effect that going by Ext.P3, accused is not shown as the owner of the property. PW4 is the then Sub Inspector of Chittarikkal Police Station who detected the crime, conducted the investigation and laid the charge sheet. He deposed that on 11.6.2000, he received an information regarding the illegal sale of liquor in the house of the appellant/accused and thereupon, he prepared Ext.P7 advance search memo. After recording the reason for not obtaining the search warrant, he proceeded to the house of the appellant/accused at Palavayal along with PC Nos.941 and 972. He would also depose that he conducted search in the house of the appellant/accused and found the contraband articles namely 43 bottles of King George Grapes Brandy each having capacity of 180 ml in the bed room situated on the southern side of the house. The learned Sessions Judge found that

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the fact that the independent witnesses turned hostile is of no consequence in the light of the decision in State of Kerala v. Choyunni [1980 KLT 107] . It was found that both PW1 and PW2 would admit their signatures respectively in Exts.P1 and P2. Ext.D1 is the building tax assessment register extract maintained by East Eleri Grama Panchayat produced by PW3 on summons and it would show one Thomas as the owner and resident of the building bearing No.EEGP VI/402. The learned Sessions Judge found that Ext.D1 assessment register extract was not confronted with PW3 and further that the accused K.M.Joseph is also called by the assumed name Thankachan Karikkakunnel. In such circumstances, it was found that the contention against Ext.P3 cannot be sustained. In short, the learned Sessions Judge found that the prosecution has succeeded in establishing the guilt of commission of offence under section 55(a) of the Abkari Act against the accused and consequently, held him guilty thereunder and convicted and sentenced as aforesaid.

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4.I have heard the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant raised certain legal contentions to assail the impugned judgment of conviction . It is contended that the procedural irregularity rather illegality which would strike at the root of the prosecution case was not properly appreciated by the learned Sessions Judge. The evidence in this case would reveal that the case was detected and investigated by PW4 and after the investigation he himself laid the final report as well. It is contended that since the complainant and investigating officer are same person, the investigation could not be said to be fair and proper and in such circumstances, based on the final report laid by the officer who detected the crime cognizance ought not to have taken and the appellant should not have been convicted. It is further contended that there was absolutely no material on record to show that the appellant was the owner of the house from which the contraband

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liquor viz., 43 bottles of King George Grapes Brandy were seized. Ext.P3 produced by the prosecution to establish the ownership of the accused over the said house itself would reveal that it belonged to one Thankachan Krikkakunel. That apart, the appellant/accused produced Ext.D1 and going by the same, the owner of the house was one Thomas. Whatever that be, the prosecution has failed to establish that the appellant was the owner of the house at the relevant point of time, it is contended. It is also contended that the seized and produced contraband liquid and the samples taken were not properly sealed and labelled as mandated by the statute and no evidence whatsoever was adduced by the prosecution to establish that they were sealed and labelled strictly adhering to the statutory mandate. The learned counsel for the appellant further submitted that no property list was prepared and produced before the court and in fact, there is nothing on record to show that the residue viz., 41 bottles out of 43 bottles allegedly seized were produced before the court. In the absence of

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evidence to show that the sample taken from the seized contraband liquid was properly sealed and labelled and only thereafter it was taken to the police station, the delay of two days in producing the sample is fatal to the prosecution especially in the absence of any explanation for the delay, it is contended. In such circumstances, it is further contended that it could not be said that it was the sample that was found (allegedly found from the possession of the appellant) that reached the analyst in a tamper proof condition. It is also contended by the learned counsel for the appellant that PW4 himself would admit that he had not verified from records as to the ownership of the building in question and also that in none of the documents prepared by him he had noted the presence of the accused. It is contended that the learned Sessions Judge failed to consider those illegalities and in such circumstances, the judgment of conviction is liable to be interfered with. The learned Public Prosecutor, on the contrary, contended that no illegality could be attributed on PW4 for

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conducting the investigation and laying the final report after detecting the offence by himself. It is contended that the said irregularity cannot vitiate the entire proceedings. It is also contended that the evidence of PW4 would reveal that the sample taken from the contraband liquor was sealed and the statement in Ext.P6 report of the chemical analysis would reveal that the sample bottles reached there in sealed condition and was in tact. In such circumstances, there was no reason to treat that the sample found from the possession of the appellant had not reached in a tamper proof condition for analysis. It is further contended that the FIR would reveal that the appellant has the assumed name of Thankachan. In such circumstances, Ext.P3 would reveal that the building from where the contraband liquor in 43 bottles were found was in the possession of the appellant and Ext.D1 could not be acted upon especially when PW3 was not confronted with Ext.D1. In such circumstances, it is contended that the finding of the learned Sessions Judge that the appellant was in possession and

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ownership of the said house cannot be said to be without any basis. It is also contended that the evidence of PW4 would reveal that he detected the contraband liquor after preparing an advance search memo viz., Ext.P7 and conducted the investigation in accordance with law and despite the cross examination, nothing could be elicited from him to establish he is not trustworthy. In short, the learned Public Prosecutor contended that though the independent witnesses turned hostile the evidence of PW3 and PW4 together with the admission of PW1 and PW2 of their signatures respectively in Exts.P1 and P2 and Ext.P6 would undoubtedly lead to the guilt of the accused and in such circumstances, no appellate interference is called for.

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5.Undoubtedly, in this case, PW4 acted as the detecting officer

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as also the investigating officer. After completing the investigation, he himself laid the final report. The oral testimony of PW4 would reveal that he conducted the search in the house bearing No.EEP

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VI/402 of East Eleri Grama Panchayat on getting information regarding illegal sale of liquor. True that he had prepared Ext.P7 advance search memo. In Ext.P7 search memo what is stated is that he received information of illegal sale of arrack in the house of one K.M.Joseph. He would also depose that after preparing Ext.P7 he went to Palawayal where the said house situates along with PC Nos.941 and 972. In fact, PC 641 and 922 were cited as complaint witnesses. However, those police constables allegedly accompanied PW4 were not examined by the prosecution and the independent witnesses namely PW1 and PW2, though admitted their signatures respectively in Exts.P1 and P2, turned hostile to the prosecution. PW1 categorically deposed that he had not seen the accused in the house bearing No.EEP VI/402 at the time of preparation of search list. PW2 would depose that he had not seen the accused at the time of preparation of the scene mahazar along with the police. Evidently, the complaint was laid by PW4 who detected the alleged offence.

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Essentially, one of the contentions of the appellant is that to ensure a fair and proper investigation, the detecting officer could not be the complainant. It is to buttress the said contention that the decision in Naushad v. State of Kerala [2000(1) KLT 785] has been relied on. That was a case under the NDPS Act and later, a Division Bench of this Court in Kader v. State of Kerala [2001(2) KLT 407] overruled the decision in Naushad 's case (supra). The Division Bench held that in a case under NDPS Act such a contention could not be a ground vitiating the entire proceedings for the reason that part of the investigation is practically over at the time of detection of the offence and what was left thereafter would only be the forwarding of the sample for analysis. In the decision in Biju v. State of Kerala [2011 (4) KLT SN 41 (C.No.41)], a learned Judge of this Court held that the fact that the detecting officer himself conducted the investigation and laid the final report could not vitiate the proceedings in abkari cases as well. That was a case under sections 55(b) and 55(g) of the Abkari

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Act. Evidently, the fact that the decision in Naushad 's case (supra) was overruled by the Division Bench in Kader 's case (supra) was taken note of. Further, it was held that the dictum laid down in Kader 's case (supra) would be applicable in cases involving an abkari offences as well. It is found that when the detecting officer detects and seizes the contraband article, the main part of the investigation would be completed and thereafter, what would remain is only sending of samples for chemical analysis and lodging of the final report on its receipt. In such circumstances, I do not find any reason to uphold the contentions of the appellant based on the aforesaid factual position. At the same time, certain other circumstances exist in this case which call for serious consideration. In the case on hand, PW4 deposed that he proceeded to Palavayal on receipt of an information regarding illegal sale of liquor in the residence of one K.M Joseph. True that in the light of the provisions under section 31 of the Abkari Act, an abkari officer is empowered to enter and search

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any place and seize anything found therein which is liable to confiscation under the Act and may detain and search and if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of any offence under the Act even without warrant after recording the reason for forming the opinion that the delay in obtaining a search warrant under section 30 of the Act would prevent the execution. True that Ext.P7 search memorandum carries such a reason. But at the same time, after the search and consequential arrest and seizure, the detecting officer is bound to follow the procedures contemplated under section 40 of the Abkari Act. In this case, going by the evidence of PW4, he seized 43 bottles of King George Brandy each having a capacity of 180 ml from the bedroom on the southern side of the house bearing No.EEP VI/402. A perusal of the provisions under section 36 of the Abkari Act, paragraph 17, 26, 34, 49 and 77 of the Abkari Excise Manual and above all, section 40 of the Abkari Act would reveal that the seized articles are bound to be produced

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before the court without unnecessary delay. In the decision in Ravi v. State of Kerala [2011 (3) KHC 121] a Division Bench of this Court considered the question whether the delay in producing the seized article is fatal to the prosecution. It was held by the Division Bench that it is not necessary to produce articles seized under section 34 of the Abkari Act before the Magistrate forthwith. However, it was held that seizure of the property should be reported forthwith to the court and the production of the property before the court should also take place without unnecessary delay with proper explanation for the delay, in case of any delay. It was also found that if there is no satisfactory explanation for the delay it will be fatal to the prosecution. In the light of the said decision and the procedures to be followed statutorily the question to be looked into is whether the procedures statutorily mandated were complied with and if not whether it is fatal to the prosecution. As noticed hereinbefore, in this case, even going by the evidence of PW4, he had only labelled the sample viz., two bottles out

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of the allegedly seized 43 bottles. Thus, going by the evidence of PW4, he had only labelled the sample bottles but he had not deposed as to whether they were sealed or not. At any rate, PW4 has not deposed as to the manner in which they were sealed. There is absolute absence of any whisper what he had done with the residue viz., 41 bottles having capacity of 180 ml; whether they were sealed and labelled. It is also to be noted that there is nothing on record to show that the residue was produced before the court. Evidently, those 41 bottles were not marked. In the decision in Narayana Velichappada v. Sub Inspector of Police and Another [2007 (4) KHC 748], this Court found that the non-production of the residue is fatal to the prosecution and it would suggest that the alleged seizure was not proved. There can be no doubt with respect to the position that it is the obligation of the prosecution to establish that the seized contraband article or liquid was sealed and labelled at the scene of occurrence itself after following the statutorily prescribed procedures

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in the presence of witnesses and that thereafter it was in tact till it reached analyst for chemical analysis. In other words, it is the duty of the prosecution to show that the contraband liquid seized from the possession of the accused reached the analyst for chemical analysis in a tamper proof condition. It could not be said that the said obligation was discharged by merely showing that from the court it reached the analyst in tamper proof condition. The prosecution also has a duty to show that immediately on seizure the contraband liquid along with the residue were properly sealed and labelled in the presence of the witnesses and were taken to the concerned police station or excise range office, in tact, and thereafter till it reached the court it was in tact and safe custody. In this case, no evidence was adduced by PW4 that he sealed the sample bottles and had sealed and labelled the residue. That apart, there occurred a delay of two days in producing the sample before the court for the purpose of sending it for chemical analysis and no evidence was let in to establish that the contraband

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article was in safe custody till it reached the court. To put it briefly, the prosecution has failed to establish that what is seized from the possession of the accused was produced, in tact, before the court and the sample drawn from the contraband liquid or article reached the analyst in a tamper proof condition. It is to be noted that such procedures are prescribed to ensure fairness in investigation and also ensure that it is the same article which was seized from possession of the accused that was subjected to analysis. In this case, going by the evidence of the prosecution, it is evident that those procedures were not complied with. In such circumstances, the non-compliance with the procedures as also the non-explanation of the delay in producing the sample and the non-production of the rest of the contraband liquid cannot be said to have caused no prejudice to the accused. Evidently, these facts were not given serious consideration by the learned Sessions Judge. Over and above, it cannot be said that in this case the ownership of the place of occurrence was established. It is a fact that

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Ext.P3 would only certify that the owner of the building referred to thereunder is one Thankachan Karikkakunnel. Ext.P3 did not show that the person Thankachan also having another assumed name K.M.Joseph and such a reference is only there in Ext.P4 FIR. While being examined as PW4, he did not depose to the effect that Thankachan Karikkakunnel and K.M.Joseph, accused are one and the same person or in other words, the accused is also having the assumed name as Thankachan. It is submitted that in the appeal the name of the appellant was shown as K.M.Joseph @ Thankachan @ Vittil Thankachan only to avoid a defect inasmuch as showing the name differently would have caused defect. In this context the relevance of Ext.D1 has also to be looked into. The appellant/accused produced Ext.D1 building tax assessment register extract maintained by East Eleri Grama Panchayat i.e. a document produced on summons by the Secretary of the East Eleri Grama panchayat. It is an official document and as such a presumption of correctness is to be attached

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to it. The reason that PW3 was not confronted with Ext.D1 could not have been a reason for discarding the same in toto, in the facts and circumstances of the case as it was produced in defence and it would reveal that one Thomas as the owner and resident of house bearing No. EEP VI/402 which is the house involved in this case. In Ext.P3, the owner of the house is shown as one Thankachan Karikkakunnel.

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Be that as it may, it is a fact that neither Ext.P3 nor Ext.D1 carry any suggestion that it was the accused who is the owner of building bearing No.VI/402 of East Eleri Grama Panchayat. In that context, the evidence of PW4 assumes relevance. PW4 who detected and conducted the investigation and laid the charge deposed before the court that he had not verified any document regarding the ownership of the building in question. In other words, he would admit that he had not verified whether the accused/appellant is the owner of the building. He would also admit that in none of the documents he had noticed even the presence of the accused in the house or in the

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premises. In such circumstances, it is a fact that what is available for connecting the accused with the offence is only a reference made in the FIR that K.M.Joseph is also having assumed name as Thankachan. There can be no doubt that FIR is not a piece of evidence. When the prosecution has failed to show that the appellant was the owner of the building in question from where the contraband articles were found or he was in possession of that building or even that he was present either in the house or in the premises at the relevant point of time I am at a loss to understand how the prosecution could be said to have succeeded in proving connection of the accused with the crime. Those aspects were not at all considered by the learned Sessions Judge. In such circumstances, I am of the view that the trial court had failed to properly appreciate the evidence and that the finding of guilt on the accused is nothing but a perverse appreciation of evidence. In such circumstances, the judgment of conviction entered against the appellant is liable to be interfered with. Hence, this appeal is allowed.

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The judgment dated 22.11.2003 in S.C.No.54 of 2001 passed by the Court of Additional Sessions Judge (Ad Hoc-I), Kasaragod is set aside

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and the bail bond of the appellant is cancelled.

Sd/-

C.T. RAVIKUMAR

(JUDGE)

spc/

Crl.A.1989/03

C.T. RAVIKUMAR, J.

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JUDGMENT

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September, 2010

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K.M.Joseph v. Kerala State

Case brief

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K.M.Joseph v. Kerala State

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