Allowed

Sivanandi v. State of Kerala

Kerala HC21 Jan 2019CRL.A/1207/2005

Case brief

AI extract

What is this about?

Appeal against conviction for distilling arrack. High Court found severe infirmities in evidence, including lack of proper seal identification on seized samples, delay in court production, and detecting officer conducting his own investigation. Appeal allowed, accused acquitted.

What did the court decide?

Appellant acquitted of offence under Section 55(a) of Kerala Abkari Act; conviction and sentence set aside.

Sivanandi Vs State of Kerala — Specific Performance | Kerala HC (2019)

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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 P.UBAID

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MONDAY ,THE 21ST DAY OF JANUARY 2019 / 1ST MAGHA, 1940

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CRL.A.No. 1207 of 2005

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AGAINST THE JUDGMENT IN SC 87/2000 of ADDITIONAL SESSIONS JUDGE, KOTTARAKKARA DATED 29-06-2005

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APPELLANT/ACCUSED:

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SIVANANDI, S/O MARUTHAI QUARTERS NO.6/3, 2 J COLONY,, RPL ESTATE, KULATHUPUZHAMURI,, KULATHUPUZHA VILLAGE, KOLLAM DISTRICT.

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BY ADV. SRI.ANCHAL C.VIJAYAN

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA THROUGH SUB-INSPECTOR OF POLICE, KULATHUPUZHA,, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.

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OTHER PRESENT:

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SRI.SANTHOSH PETER (PUBLIC PROSECUTOR)

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.A.No. 1207 of 2005 2

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JUDGMENT

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The appellant herein challenges the conviction and sentence against him under Section 55(a) of the Kerala Abkari Act (for short “the Act”) in S.C No. 87/2000 of the Special Additional Sessions Court for the trial of Abkari Act Cases, Kottarakkara. He faced trial before the learned trial judge on the allegation that when the Sub Inspector of Police, Kulathupuzha conducted a search at his quarters No. 6/3 of the RPL Estate, Kulatahupuzha on the basis of a secret reliable information, the accused was found engaged in the process of distilling arrack. The accused was arrested on the spot by the Sub Inspector, and a quantity of 40 litres of wash contained in an aluminum pot of 50 litres capacity was seized by him. On the basis of search and seizure, the Sub Inspector registered the crime and he himself conducted investigation. Another Sub Inspector, who succeeded him verified the documents and submitted final report in court.

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The accused appeared before the learned trial judge and pleaded not guilty to charge framed against him. The detection in this case was made on 04.09.1998, after the coming into force of Section 8 of the Act. Instead of framing a charge under Section 8(2) of the Act, the learned trial judge wrongly framed charge under Section 55(a) of the Act. The prosecution examined five witnesses and proved Exts. P1 to P5

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CRL.A.No. 1207 of 2005 3

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documents in the trial court. The MO1 to MO5 properties were also identified. The accused denied the incriminating circumstances, and he also examined a witness in defence as DW1. Ext. D1 certificate was also marked on his side. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,00,000/(Rupees One lakh only). Aggrieved by the judgment of conviction dated 29.06.2005, the accused has come up in appeal.

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On hearing both sides, and on a perusal of the materials, I find some serious infirmities in this case, the benefit of which must go to the accused. Of the five witnesses examined in the trial court, PW4 is the Sub Inspector who detected the offence and PW3 is the Head Constable who assisted him. PW1 and PW2, examined as independent witnesses turned hostile. PW5 is the Sub Inspector who submitted final report in court.

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PW3 and PW4 have given evidence regarding the arrest of the accused and seizure of some articles including an aluminum pot allegedly containing wash. The crucial question is whether the liquid or the fluid seized by the Sub Inspector was identified as wash as the prosecution would allege. This court has settled that the copy of the forwarding note produced in court must be proved in evidence, and it must contain the specimen of the seal affixed on the sample and other properties. This is for the proper identification of the property including the sample, and the seal

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CRL.A.No. 1207 of 2005 4

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affixed by the officer must be his personal seal. The search list does not show what seal was affixed on the samples. PW4 and PW3 have not stated what seal is affixed on the sample. The copy of the forwarding note is not seen produced or proved in court. Thus it is not known what seal was affixed on sample and other properties. In short, there is nothing to identify the properties including the sample, as those seized from the possession of the accused. Practically, there is nothing to prove that the thing allegedly seized from the possession of the accused was identified as wash. This itself is a ground for acquittal.

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This Court has said that the contraband articles in such cases shall be produced in Court without any delay. The Ext. P4 property list shows that the properties were produced in court only on 03.11.1998. The detection was on 04.09.1998. The prosecution has no explanation for this inordinate delay. The Sub Inspector would say that as there was no sufficient space in the court he was directed to keep the properties in his safe custody. There is nothing to show that he was so authorised by the learned Magistrate. It is not known in whose safe custody the properties were till 03.11.1998. This is also an infirmity, the benefit of these must go the accused, because tampering with the properties will have to be doubted very much.

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The detection was made by PW4, he registered the FIR and he himself conducted investigation. The legal provisions stands now settled

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CRL.A.No. 1207 of 2005 5

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by the Supreme Court, that in such cases were the detecting officer will have to come as the prominent material witness to prove the facts, he cannot be the investigating officer also. PW4 has no explanation why he himself conducted investigation. PW5 had no role in the process of investigation. He only submitted final report in court. The investigation conducted by detecting officer is another legal infirmity affecting the whole prosecution case. As found above, there are so many infirmities and illegalities affecting the whole prosecution case, the benefit of all these must go to the accused by way of acquittal.

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In the result, this appeal is allowed. The appellant is found not guilty of the offence under Section 55(a) of the Act, and accordingly, he is acquitted in appeal under Section 386(b)(i) of the Cr.P.C. The conviction and sentence against him in S.C. 87/2000 of the court below will stand set aside, and the appellant will stand released from prosecution.

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Sd/-

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P.UBAID JUDGE

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sru

Sivanandi v. State of Kerala

Case brief

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What did the court decide?

Sivanandi v. State of Kerala

Case brief

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What did the court decide?

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