Allowed

Saraswathy v. State of Kerala

Kerala HC28 Jan 2019CRL.A/787/2006

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal, acquitting the appellant of possessing arrack. The Court held that the prosecution failed to prove the identity of the liquid as arrack due to the absence of a forwarding note, lack of seal specimens, and hostile witness testimony regarding sample collection.

What did the court decide?

The conviction and sentence against the appellant in S.C. No.1447/2001 are set aside, and the appellant is found not guilty and released from prosecution.

Saraswathy Vs State of Kerala — Cheque Dishonour | 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 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940

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CRL.A.No. 787 of 2006

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AGAINST THE JUDGMENT IN SC 1447/2001 of ADDITIONAL DISTRICT COURT (ADHOC)-IV, TRIVANDRUM

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AGAINST THE JUDGMENT IN CP 74/2001 of JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEDUMANGAD

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APPELLANT/ACCUSED:

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SARASWATHY, D/O KUCHUMMINIYAMMA THADATHARIKATHU VEEDU, PACHAMALA, ANAD MURI,, KURUPUZHA VILLAGE, NEDUMANGAD.

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BY ADVS. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR

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RESPONDENT/COMPLAINANT:

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

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SRI SANTHOSH PETER (PUBLIC PROSECUTOR)

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No. 787 of 2006 2

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JUDGMENT

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The appellant herein challenges the conviction and sentence against her under Section 8 (2) of the Kerala Abkari Act (“the Act”) in S.C. No.1447/2001 of the Court of Session, Thiruvananthapuram. She faced trial before the learned Additional Sessions Judge, (Adhoc-IV), Thiruvananthapuram on the allegation that at about 5.00 p.m on 11.02.1999, at Kurupuzha Village, she was found possessing 2.5 litres of arrack in a plastic can of five litres capacity. The offence was detected by a Preventive Officer of the Nedumangad Excise Range within the limits of the Vamanapuram Excise Range. He arrested the accused on the spot and seized the contraband articles as per a mahazar. On the basis of the arrest and seizure made by the Preventive Officer, the Excise Inspector of the Vamanapuram Excise Range registered the crime and occurrence report and he also produced the accused and the properties in court. Another Excise Inspector conducted investigation and submitted final report in court.

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The accused appeared before the learned trial judge and pleaded not guilty to the charge framed against her. The prosecution examined six witnesses and proved

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CRL.A.No. 787 of 2006 3

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Exts.P1 to P9 documents in the trial court. The MO1 property was also identified. The accused projected a defence of total denial and she did not adduce any evidence in defence.

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On an appreciation of the evidence, the trial court found the accused guilty. On conviction, she was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of 1,00,000/- (Rupees One lakh only). Aggrieved by the₹ judgment of conviction dated 25.03.2006, 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 infirmities and doubtful circumstances, the benefit of which must go to the accused. Of the six witnesses examined in the trial court, PW1 is the Preventive Officer who detected the offence and PW2 is the Preventive Officer who assisted the detecting officer. PW3 is the Excise Inspector who registered the crime and occurrence report and PW4 is the Excise Inspector who conducted investigation and submitted final report. PW5 and PW6, examined as independent attesters to the seizure mahazar , turned hostile.

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Of course, PW1 and PW2 have given evidence regarding the arrest of the accused and the seizure of a

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CRL.A.No. 787 of 2006 4

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plastic can. Their case is that a plastic can containing 2.5 litre of liquid was seized on detection. During trial. they stated that at present there is nothing in the plastic can. Anyway, the crucial question is whether the liquid therein was identified as arrack, as the prosecution would allege.

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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. No such forwarding note is seen produced or proved in this case. It is not known what seal was affixed on the sample by PW1. The mahazar does not contain the specimen of the seal. PW1 does not say what seal was affixed by him. Thus, there is nothing to identify the sample sent for analysis as the sample collected from the possession of the accused. Yet another curious aspect is that it is not known who collected the sample or how it was collected or where it was collected. PW1 has no case that he had collected any sample. The mahazar does not show that any sample was collected at the time of detection. Some sample was sent for analysis from the court. It is not known how a sample happened to be sent for analysis. In the above

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CRL.A.No. 787 of 2006 5

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circumstances, the Ext. P6 report of analysis will not bind the accused. Practically, there is nothing to show that any sample was collected from the possession of the accused or, that the liquid allegedly contained in the plastic can produced in court was identified as arrack. This itself is a sufficient ground to acquit the accused. In the absence of anything to prove that the contraband article was identified as arrack, the accused cannot be convicted under Section 8 (2) of the Act.

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In the result, this appeal is allowed. The appellant is found not guilty of the offence alleged against him under Section 8(2) of the Act . Accordingly, the conviction and sentence against him in SC 1447/2001 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

Saraswathy v. State of Kerala

Case brief

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Saraswathy v. State of Kerala

Case brief

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