The High Court allowed the criminal appeal, holding that the presence of a crime number in the seizure mahazar before the offence was registered and the unexplained delay in producing the seized contraband raise material doubts, warranting acquittal.
Conviction and sentence set aside; accused found not guilty; bond cancelled; fine refunded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 11TH DAY OF DECEMBER 2020 / 20TH AGRAHAYANA, 1942
CRL.A.No.442 OF 2008
AGAINST THE JUDGMENT IN S.C.NO.67/2007 DATED 07-02-2008 ON THE FILES OF THE ADDITIONAL SESSIONS COURT (SPECIAL COURT FOR N.D.P.S ACT CASES), THODUPUZHA
APPELLANT/ACCUSED:
RAMANAN, S/O.PADMANABHAN, PADINJARAYIL, MULLARINJADU KARA, VANNAPPURAM, VILLAGE, THODUPUZHA.
BY ADV. ADV DHEERANDRA KRISHNAN FOR ADV. SRI.S.RAJEEV
RESPONDENT/COMPLAINANT:
STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, (CRIME NO.3/2005 OF EXCISE RANGE OFFICE, THODUPUZHA).
BY SRI.P.K. BABU, SR. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.442 OF 2008
2
JUDGMENT
Dated this the 11th day of December 2020
The accused in S.C.No.67 of 2007 on the files of
the Additional Sessions Court (Special Court for N.D.P.S. Act Cases), Thodupuzha assails his conviction and sentence imposed by judgment dated 07.02.2008. As per the impugned judgment, the accused has been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/- for the offences under Section 8(1) and 8(2) of the Abkari Act, 1077.
CRL.A.No.442 OF 2008
3
completing the procedures, the accused was charge sheeted
and later the case was committed to the Sessions Court for trial.
to 6 were examined and Exts.P1 to P11 were marked apart from MO1, which was the black can containing the arrack. Though the defence did not adduce any evidence, Exts.D1 to D3 were marked on their side.
Krishnan for the appellant and the learned Public Prosecutor Adv. Sri. P. K. Babu on behalf of the State.
attention to Ext.P1 seizure mahazar and contended that the
presence of Crime No.3/2005 in Ext.P1 mahazar is not only startling but raises doubt about the prosecution case. It was
also contended that the delay in producing MO1, can before Court strikes at the root of the prosecution case. It was also
CRL.A.No.442 OF 2008
4
argued that Exts.P1 and P2 did not contain the seal of the Detecting officer, and absence of the seal in the mahazar as well as in Ext.P2 paper slip has effectively disabled the Court from verifying whether the article seized and sample taken were the same as the one forwarded to the chemical analyst. The learned counsel also vehemently argued that in the absence of any evidence to directly connect the possession of the accused, he is entitled to be given the benefit of doubt. Failure of the prosecution to prove the identity of the person who drew the sample from MO1, also, according to the counsel stares at the prosecution. The learned counsel in support of his aforesaid contentions relied upon the decisions in Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and Another [2020 (3) KHC 715] and Lalitha v. State of Kerala [2012 (1) KHC 554].
CRL.A.No.442 OF 2008
5
sufficiently explained and the same was considered by the learned Sessions Judge, who arrived at the conclusion that there was no delay, which remained unexplained. The learned Public Prosecutor further submitted that the prosecution is entitled to get the benefit of presumption under Section 64, especially since the contraband article was seized from the property of the accused, which compels him to explain or account for the said presence of can in his courtyard. It was also argued that the the learned Sessions Judge had considered the evidence properly and the same needs no interference.
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CRL.A.No.442 OF 2008
mahazar. A reading of Ext.P1 reveals that a Crime
No.03/2005 is mentioned in Ext.P1 mahazar.
to the transaction mentioned in it. Seizure mahazar will explain the nature and details of transaction that was carried out while the detecting officer seized the contraband, in an abkari case. In a case where the Commission of an offence under the Abkari Act was detected only on seizure it is rather strange to find the crime number written on the mahazar. It is not a common practice while preparing mahazar to include the crime number in the mahazar even before the crime was detected, or before the crime was registered. The explanation offered by PW3 that he was aware about the next crime number to be registered is too fanciful a proposition for this Court to appreciate. It has come out in evidence that PW3 started from his office around 10.30 am and he had reached the house of the accused at 12.15 p.m. Many things could have happened within this period of two hours. Other crimes could have been detected and registered, even within that two hours interval.
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number, two possibilities are open for conclusion. The first possibility is that the crime was registered even before it was detected and the second is that the mahazar was not prepared contemporaneously to the seizure. In either situation, the prosecution case loses its credibility. The explanation offered by PW3 during cross-examination is not worthy of belief and is not convincing. This Court finds it difficult to accept the belated explanation of PW3 without a pinch of salt.
715], where this Court has referring to the presence of crime number in the arrest memo and in the absence of proper explanation held that such presence of the crime number gives rise to two inferences, one that the First Information Report was recorded prior to the alleged recovery of the contraband or that the number of the crime was inserted in the arrest memo after its registration and in both instances, it creates doubts upon the veracity of the prosecution version.
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memo, it is the seizure mahazar where the presence of the crime number is seen mentioned, according to me, the principle remains the same as at the time of seizure, on which the seizure mahazar is based there is no crime in existence. It is only during the seizure and thereafter that the crime is detected. So, at the time of seizure to have a crime number entered in the seizure mahazar creates doubts upon the seizure as well as the very basis of the prosecution case.
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absence of seal in Ext.P7 is not material and that MO1 was returned, the evidence of PW3 that after 12.03.2005, he saw MO1 only in Court makes it essential for the prosecution to explain the custody of MO1 once the same was returned from Court till it was reproduced on 14.03.2005. The absence of explanation for the two days of custody assumes significance because in any tampering with MO1 during the two days period could cause prejudice to the accused. All the more since the samples were sent for chemical analysis only subsequently. The failure to properly explain the custody of MO1 and the sample taken from 12.03.2005 till 14.03.2005 also entitles the accused to have the benefit of doubt in the nature of evidence adduced in the instant case.
CRL.A.No.442 OF 2008
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the accused is entitled to be acquitted and the appeal, to be allowed.
sentence imposed upon the accused in S.C.No.67 of 2007 on the files of the Additional Sessions Court, Thodupuzha is set aside and the accused is found not guilty. The bail bond executed, if any, shall stand cancelled and the fine amount or any part of it, if remitted by the appellant shall be refunded to him .
The appeal is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
DK
2 issues framed by the court
Whether the presence of a crime number in the seizure mahazar prior to registration of the offence creates reasonable doubt regarding the authenticity of the seizure.
Whether the unexplained custody of the seized contraband between its production before the Magistrate and subsequent production in Court entitles the accused to acquittal.
Colour shows how this judgement treated each authority
2 provisions across 2 enactments
RAMANAN, S/O.PADMANABHAN
STATE OF KERALA
BECHU KURIAN THOMAS
As recorded by the court registry
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BECHU KURIAN THOMAS
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