Allowed

Craamma v. State of Kerala

Kerala HC8 Jan 2014CRL.A/2135/2003

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal appeal against conviction for possession of arrack under the Abkari Act. The Court set aside the conviction due to insufficient evidence linking the seized contraband to the chemical analysis report, as per precedent requiring a foolproof chain of custody.

What did the court decide?

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

Craamma Vs State of Kerala — Cheque Dishonour | 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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WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935

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CRL.A.No. 2135 of 2003 (E )

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AGAINST THE ORDER/JUDGMENT IN SC 100/2000 of ADDL. SESSIONS JUDGE, FAST TRACK (ADHOC-II), ALAPPUZHA DATED 30-10-2003

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APPELLANT: ACCUSED :

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RAJAMMA, W/O.YESODHARAN, VALLAYATHUVILA VEEDU, VALLIKUNNAM MURI, VALLIKUNNAM VILLAGE, MAVELIKKARA.

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BY ADVS.SRI.BASANT BALAJI SRI.R.GOPAN

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RESPONDENT : COMPLAINANT :

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

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BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.2135 of 2003

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Dated this the 08^th day of January, 2014

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JUDGMENT

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The appellant, who is a lady and who faced prosecution in S.C.No.100 of 2000 of the court of the Additional Sessions Judge, Fast Track (Adhoc-II), Alappuzha, preferred this appeal as she is aggrieved by the judgment dated 30/10/2003 in the above Sessions Case by which she is convicted and sentenced for the offence under Section 55(a) of the Abkari Act.

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The prosecution case is that the accused was found carrying 2 ½ litres of arrack in a white plastic bottle on 01/11/1997 at 12.15 P.M. through KTP canal road near Ambetkar colony against the provisions of Abkari Act and thereby the accused has committed the offence punishable under Section 8(1) & (2) and 55 (a) of the Abkari Act. On the above allegation, Crime No.131 of 1997 was registered in the Excise Range, Mavelikkara and on completing the investigation a report was filed, based upon, which eventually

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Crl.A.No.2135 of 2003

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S.C.No.100 of 2000 was instituted in the Sessions Court, from where the case was made over to the present trial court for disposal. When the accused appeared, after hearing the prosecution and the defence, a formal charge was framed against the accused for the offence punishable under Section 55(a) of the Abkari Act and when the said charge was read over and explained to the accused, she denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence by examining PWs.1 to 5 and producing Exts.P1 to P3 documents. MO.1 is also identified as material objects. On conclusion of the trial, the learned Judge found that the prosecution has succeeded to prove beyond reasonable doubt that the accused was arrested by PWs.1 and 2 along with MO.1 plastic can containing arrack against the provisions of the Act and thus the accused has committed the offence punishable under Section 55 (a) of the Abkari Act and accordingly she is convicted thereunder. On such conviction the appellant/ accused is sentenced to undergo rigorous imprisonment for one year and to pay fine of Rupees One lakh and in default of

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Crl.A.No.2135 of 2003

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payment of fine she is directed to undergo rigorous imprisonment for three months. Set off is allowed under Section 428 of the Cr.P.C.

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Heard Sri.R.Gopan, the learned counsel for the appellant and Smt.Laliza, the learned Public Prosecutor for the State.

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PW.1 is the then Preventive Officer attached to Excise Range, Mavelikara who detected the crime and PW.5 was then working as Excise Guard attached to the same Range, who accompanied PW.1 at the time of the detection of the crime. To prove the detection of the crime, seizure of the contraband article and arrest of the accused besides PWs.1 and 5, the prosecution has also examined PWs.2 and 3, who are independent witnesses, but they turned hostile. Thus, when PWs.1 and 5 were examined they have deposed in terms of the prosecution allegation and according to these witnesses on 01/11/1997 while they were on patrol duty and when reached the road near Ambetkar colony, they found the accused coming from their opposite side with a plastic can

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Crl.A.No.2135 of 2003

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having the capacity of 10 litres and on entertaining doubt the accused was intercepted and the plastic can was inspected and found the same contained liquid, which on tasting and smelling was realised as arrack. Thus, according to PWs.1 and 5, the accused was arrested and the contraband articles were seized and the sample drawn from the contraband article. According to PWs.1 and 5, the entire proceedings are recorded in a timely prepared mahazar and on completing the proceedings they returned to the Excise Range Office. Thus, when PW.1 is examined, he had identified the mahazar prepared by him as Ext.P1. PW.5 has also identified the material objects.

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As per the evidence of PWs.1 and 5 the contraband article and the accused were entrusted with the Mavelikkara Excise Range Office and consequently a crime was registered and the accused as well as the contraband articles and the samples were produced before the court. PW.4 is the officer who investigated the crime and when he was examined he identified Ext.P2 crime and occurrence report prepared in the present case. The chemical analysis report also is marked

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Crl.A.No.2135 of 2003

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through PW.4. It is on the basis of the above evidence and materials the trial court entered into the above finding and convicted the appellant for the offence under Section 55(a) of the Abkari Act.

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The learned counsel for the appellant vehemently submitted that, in the present case no arrest memo, no seizure list, no property list, no forwarding note are prepared and produced and the same would go against the prosecution. It is also contended that, regarding the exact place of occurrence there is serious contradictions in the evidence of PWs.1 and 5. It is also the submission of the learned counsel that in Ext.P1 mahazar there is no reference to the effect that the samples and the material objects were labelled containing the signature of the accused and the witness. So, according to the learned counsel the finding of the court below is incorrect and 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 5 are supported by the contemporaneous document Ext.P1 mahazar and Ext.P2

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Crl.A.No.2135 of 2003

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crime and occurrence report which positively prove the prosecution allegation against the appellant. It is also the contention of the learned Public Prosecutor that as the arrest of the accused proved through the evidence of PWs.1 and 5, the non-preparation of the arrest memo and the seizure mahazar will not affect the prosecution case. It is also contented that the contradictions pointed out by the learned counsel are minor in nature and therefore the same are insufficient to disbelieve the prosecution allegation. Thus, according to the learned Public Prosecutor, the trial court, after considering the entire evidence and materials on record accepted the prosecution case and in the absence of any inherent infirmities in the prosecution case no interference is warranted with the findings of the court below.

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

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Crl.A.No.2135 of 2003

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Considering the divergent contentions and the evidence on record the question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offence under Section 55(a) of the Abkari Act. Having regard to the facts and circumstances in the case and especially in the light of the allegations raised against the appellant and due regards to the evidence on record, I am of the view that the prosecution case is correct and acceptable to the extent of arresting the accused with the alleged offence. Even if PWs.2 and 3 the independent witnesses are turned hostile towards the prosecution, the evidence of PWs.1 and 5, which I already referred, can be accepted to prove the arrest of the accused with the alleged contraband article. There is no discrepancy in the evidence of PWs.4 and 5 with respect to the facts led to the arrest of the accused. In the present case, though no property list is marked, on the perusal of the case diary, it can be seen that, the prosecution has already filed a property list dated 01/11/1997 and reached the same in the court on the same date, since the said list contained the initial

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Crl.A.No.2135 of 2003

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dated 01/11/1997 of the learned Magistrate, by which the learned Magistrate directed the Registry to verify and receive the MOs. Therefore, according to me, as correctly observed by the learned Judge, the so-called contraband article and the sample reached the court on the date of occurrence itself and there is no delay at all. Therefore, it can be safely concluded that the prosecution has succeeded in establishing that the accused was arrested on 01/11/1997 with the material objects as alleged by the prosecution.

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But mere arrest of the accused with the material objects is not sufficient to establish that the accused has committed the offence punishable under Section 55(a) of the Abkari Act. The prosecution has got a further duty to prove that, when the accused was arrested, she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me, there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a

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Crl.A.No.2135 of 2003

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forwarding note and submitted before the court for sending the samples for chemical analysis. In this connection it is relevant to note that, when PW.1 was examined, he had deposed during his cross-examination that he has affixed his personal seal. His deposition reads as :-

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“എന� personal seal ആണ ന�ചത. P.B. എന�ണ. MO.1-ല ഇപ��ള ക�ണ#നത പക�ടത&യ&ന( seal ആണ. എന� seal ക�ണ#ന&().”

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So, the case of PW.1 is that he had affixed the personal seal, when he seized and sealed the material objects and the samples. When PW.4 the investigating officer has examined, he

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had deposed during the cross-examination that:-

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“MO.1-ഉ, Sample-ഉ, ഞ�ന കണ&ട&(). Seal-ന� specimen പക�ടത&യ&ല നക�ട#ത&ര#പന� എന7 അറ&യ&(). സ(ത#ന�ച7 seal ന;യ�നത office-ല നക�ണ#�ന# ന�ച7 records ഉണ�ക&യത�ണ എന7 പറഞ�ല ശര&യ().”

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Crl.A.No.2135 of 2003

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The accused has seriously disputed the claim of PW.1 about the affixture of seal on the material objects as well as on the samples. PW.1 himself has admitted that the seal, which he claimed to have affixed on MO.1, is not seen on MO.1 at the time of his examination. In this case no forwarding note or requisition for sending the samples for chemical analysis is prepared and filed before the court. If a formal requisition or forwarding note is prepared and filed before the court, the same would have contained the sample seal, of the seal allegedly affixed by PW.1 on the sample bottle. The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal,

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Crl.A.No.2135 of 2003

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however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.

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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 show that the sample allegedly drawn from the contraband article said to have seized from the possession of the accused reached the hands of the chemical examiner in a fool proof condition. On application of the above dictum in the present case and in the light of the facts and circumstances referred to above, it cannot be said that the prosecution has succeeded in discharging the above responsibility. Therefore, according to me, there is no guarantee that Ext.P3 chemical analysis report

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represents the sample allegedly drawn from the contraband article seized from the possession of the accused.

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In the light of the above discussion and in view of the evidence and materials referred to above, particularly in the absence of concrete and cogent evidence in support of the prosecution case it is unsafe to convict the appellant, who is a lady and therefore I am not inclined to concur the conviction recorded by the trial court against the appellant. Resultantly the conviction recorded against the appellant is set aside.

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In the result, this appeal is allowed setting aside the judgment dated 30/10/2003 in S.C.No.100 of 2000 of the court of the Additional Sessions Judge, Fast Track (Adhoc-II), Alappuzha 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.

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V.K.MOHANAN, JUDGE

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skj

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True copy

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P.A. to Judge

Craamma v. State of Kerala

Case brief

What is this about?

What did the court decide?

Craamma v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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