Allowed

Kuttan @ Kuttappan v. State of Kerala

Kerala HC12 Feb 2020CRL.A/1270/2005

Case brief

AI extract

What is this about?

High Court allowed appeall convicted under Section 55(a) of the Abkari Act. Trial Court rejected discrepancy regarding missing forwarding note and absense of sample seal affixation. High Court quashed conviction, set aside sentence, and released accused on bail due to these fatal evidentiary defects.

What did the court decide?

Conviction and sentence set aside; bail bond cancelled; appellant set at liberty.

Kuttan @ Kuttappan Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941

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CRL.A.No.1270 OF 2005

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AGAINST THE JUDGMENT IN S.C No.314/2003 DATED 18-07-2005 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-I, ALAPPUZHA

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APPELLANT/ACCUSED:

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KUTTAN @ KUTTAPPAN, S/O.KALI, PAZHUKKAMODI THEKKECHERUVIL, LEKSHAM VEEDU COLONY, PENNUCKARA, VADAKKUMURI, ALA VILLAGE. BY ADVS. SRI.JOHN BRITTO SRI.C.A.RAJEEV

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, CHENGANNUR RANGE THORUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

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R1 BY PUBLIC PROSECUTOR

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SR PP SRI B.JAYASURYA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1270/2005 2

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JUDGMENT

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Dated this the 12^th day of February, 2020

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The judgment dated 18.07.05 of Additional Sessions Judge Fast Track Court-I, Alappuzha (for short, 'the trial court') in S.C No.314/2003 is assailed in this appeal. The appellant is the accused who was found guilty by the trial court for an offence punishable under Section 55(a) of the Abkari Act (for short, 'the Act') and convicted and sentenced to undergo rigorous imprisonment for a period of 3 years and to pay fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for 6 months. Aggrieved by the aforesaid judgment, the accused has approached this Court in the appeal on hand.

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Before adverting to the sustainability of the arguments, a narration of the facts in brief is necessary and is made hereunder:-

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At about 5.30 p.m on 11.01.2001, while on patrol duty, the Excise Range Inspector and party attached to the Excise

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Range Office Chengannur , found a man proceeding through Peringala road in Pennukkara Vadakkummuri of Ala Village, Chengannur carrying a Can of 5 litres capacity. On watching the Excise Officials approaching him, he attempted to escape, but was caught and detained by them. The Can in his possession was examined and was found to contain a liquid of 3 litres which the officials were convinced prima facie as arrack, in a process of smelling and tasting. The Can was seized and the accused was arrested from the spot. Arrest notice and arrest memo were also prepared from the spot. After drawing a sample measuring about 200 ml in a bottle of 375 ml capacity, the remnant quantity of contraband and the sample taken were sealed and seized. A seizure mahazar was prepared from the spot and independent witnesses available there were made to attest the same. Thereafter, the accused alongwith the property seized from the spot and the seizure mahazar prepared therefrom were brought to the Excise Range Office, Chengannur. There, C.R. No.03/2001 was registered under

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Section 55(a) of the Act. A list of property seized was prepared and that alongwith the properties, the accused and other relevant materials prepared in the case were forwarded to the court. The sample received by the court was sent for chemical examination. In the Certificate of analysis obtained from the Chemical Laboratory, it was certified that 40.58% by volume of Ethyl Alcohol was detected from the sample examined there. On obtaining the Certificate of chemical analysis, the investigation was concluded and a final report was laid before the Judicial First Class Magistrate Court-II, Chengannur. The offence involved being exclusively triable by Court of Sessions, the case was committed to Court of Sessions, Alappuzha. Process was issued to the accused and on his appearance, after holding a preliminary hearing, charge was framed against him for an offence punishable under Section 55(a) of the Act. The charge was read over and explained to the accused. He pleaded not guilty to the charges and thus, the trial was scheduled and held.

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CRL.A.No.1270/2005 5

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Sri. John Britto, the learned counsel urged on behalf

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of the appellant that the evidence adduced by the prosecution was deficient to reach a finding on guilt of the accused. It is contended by the learned counsel that the trial court has relied solely on the oral evidence tendered by official witnesses who were examined as PWs 1 and 2, to reach a conclusion on guilt of the accused. According to him, the trial court is not justified in relying on the testimony of official witnesses alone to reach the conclusion of guilt of the accused. According to him, the case suffers for want of independent evidence and that is fatal also. Secondly, it was contended by the learned counsel that though labels were described in the seizure mahazar as affixed on the properties seized from the spot, during the course of trial, the labels were not found on those. According to him, when the witnesses have a case that label was affixed on the contraband from the spot, absence of it creates a doubt regarding its identity. According to the learned counsel, it is a serious flaw liable to raise a doubt on

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CRL.A.No.1270/2005 6

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the identity of the contraband and to view the case of the prosecution with suspicion.

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Argument thirdly advanced was that the forwarding note, which is a crucial document in a case of the nature is not produced and marked in evidence by the prosecution and in the said circumstance also, the identity of the contraband is doubtful. The learned counsel has also pointed out to the court that when forwarding note is absent, there will not be any evidence for the prosecution to establish the affixture of sample seal on the contraband and the sample drawn from it and the nature of the seal. According to him, when forwarding note is not forthcoming, the identification of the sample by the chemical examiner on the basis of the sample seal impression is also doubtful. Raising arguments as above, the learned counsel canvassed for a reversal of the judgment under challenge.

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Per contra the learned Public Prosecutor has contended that the arguments dehors merits and the judgment under challenge is only to be confirmed. As

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CRL.A.No.1270/2005 7

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rightly contended by the learned counsel, an independent witness was cited by the prosecution and examined during trial, but he has turned unloyal to the prosecution by taking a stand that the incident which led to the registration of the case against the accused was not witnessed by him. According to him, the independent witness examined, denied attestation of Ext.P1, the seizure mahazar prepared by PW1 from the spot. According to him, solely for the reason that an independent witness examined by the prosecution has spoken against the prosecution case by being unloyal to it, versions of the official witnesses, which corroborate on material aspects cannot be thrown aside. According to him, PW1 is the detecting officer and has deposed in categoric terms that the offence alleged was detected by him at 5.30 p.m. on 11.01.2001 and in the search held, the liquid convinced in his primary examination as arrack was seized from the person identified by him during trial. The accused in the case was recognized as arrested and the sample analysed in the laboratory was also admitted as

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CRL.A.No.1270/2005 8

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drawn from the contraband liquor. According to him, the remnant quantity of the liquor seized and the sample drawn were properly sealed and labels containing signatures of himself and those of the witnesses were affixed on it. According to him, Ext.P1 seizure mahazar was prepared narrating all the formalities observed at the spot. The accused and the properties were also produced before the Excise Range Office, Chengannur and Crime No.03/2001 under Section 55(a) of the Act was registered. On the very day, the accused and the properties seized alongwith Exts.P2 and P3 were produced before the court. According to him, a requisition was sent alongwith for forwarding the sample to the Chemical Examiner's Laboratory. According to him, he was also accompanied by other officials of the Excise while detecting and seizing the contraband.

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On the side of the prosecution, PWs 1 to 4 were Examined and Exts.P1 to P4 and MO1 were marked. On closure of the evidence of the prosecution, the accused was questioned with reference to the incriminating evidence

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CRL.A.No.1270/2005 9

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brought on record by the prosecution under Section 313(1) (b) Cr.P.C. The accused denied the incriminating questions put to him and maintained the stand of false implication and innocence. For want of reasonable grounds to record an order of acquittal under Section 232 Cr.P.C, the accused was called upon to enter on his defence, but he did not adduce any evidence.

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PW2, is the Assistant Excise Inspector who admittedly accompanied PW1 at the relevant time. He also deposed categorically about all relevant aspects touching the detection, seizure and sampling of the contraband, arrest of the accused, production of properties seized before the court, examination of sample at the Chemical Examiner's Laboratory and detection of Ethyl Alcohol in the sample strictly in corroboration with the version of PW2.

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A thorough scrutiny of the evidence tendered by PW1 and PW2 would disclose that each of them came across the cross examination successfully. Each of them maintained consistency throughout the examination and

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their versions do not suffer from any material discrepancies. Eventhough the independent witnesses of the prosecution turned unloyal and thereby denied independent support to the prosecution case, the corroborative and reliable evidence of PW1 and PW2 lend every support to the prosecution case. The reason that they being official witnesses are interested ones cannot be a reason for disbelieving them when their versions are found reliable in all other respects. The accused in the case on hand has also not brought out a case of prejudice for them to state falsely against him.

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It is settled position that when the versions of official witnesses corroborate in material particulars of the case, and are found reliable on exercising caution and scrutiny, those can form basis for finding the accused guilty for the offence charged by the court.

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It is pertinent to note from the versions of PW1 and PW2 that after seizure of the liquor and drawal of sample therefrom, labels containing their signatures were affixed on those. Ext.P1 seizure mahazar also narrates the same. But

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during trial, labels were not found on the properties. PW1 and PW2 have spoken about preparation of a requisition and forwarding of the same to the court. But they have not spoken about preparation of a forwarding note and sending of the same to the court alongwith. The forwarding note also does not find a place in the documents marked in evidence by the prosecution. Forwarding note is the sole document which provides for a space for affixture of a sample seal impression. The forwarding note will normally be forwarded to the Chemical Examiner alongwith the sample for examination and since the impression of the sample seal is affixed thereon, it alone can facilitate proper identification of the sample received at the laboratory with the one drawn from the spot, by the Chemical Examiner. In the case on hand PW1 and PW2 had not spoken about affixture of sample seal on the properties from the spot after seizure. Ext.P1 also does not incorporate any narration on affixture of sample seal on the properties seized from the spot. Ext.P4 is the Certificate of Chemical analysis. It is found

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CRL.A.No.1270/2005 12

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reported by the Chemical Examiner therein:

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“ The seal on the bottle was intact and found tallied with the sample seal provided.”

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When the prosecution has no case that sample seal was affixed on the properties seized from the spot and the forwarding note is not forthcoming in evidence, there cannot be any basis for the Chemical Examiner to report as above in Ext.P4. Therefore a doubt arises as to the identification of the sample with the liquor seized from the spot. The benefit of such a doubt necessarily must be given to the accused in a criminal prosecution. In view of the above discrepancies, the version of PW1 and PW2 ought not to have been relied on by the Trial Court.

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The trial court failed to advert to the above aspects and therefore as rightly pointed out by the learned counsel, evidence was not appreciated in its proper perspective. The appeal deserves to be allowed for the forgoing reasons.

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CRL.A.No.1270/2005 13

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In the result, appeal is allowed. The judgment of

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conviction and sentence is set aside. The bail bond is cancelled and the accused is set at liberty.

Sd/-

MARY JOSEPH

JUDGE

Kuttan @ Kuttappan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kuttan @ Kuttappan v. State of Kerala

Case brief

What is this about?

What did the court decide?

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