Allowed

Madhu, S/O. Ponnappan Pillai v. State of Kerala

Kerala HC8 Apr 2021CRL.A/1334/2006

Case brief

AI extract

What is this about?

The High Court of Kerala acquitted the appellant in a criminal appeal regarding possession of contraband arrack. The court set aside the conviction and sentence, finding fatal procedural defects in the prosecution case, specifically the failure to produce an arrest memo and irregularities in the seizure and forwarding of evidence, entitling the accused to benefit of doubt.

What did the court decide?

The impugned judgment was set aside; the appellant was acquitted and set at liberty; bail bonds were cancelled.

Madhu, S/O. Ponnappan Pillai Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2021)

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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 T.R.RAVI

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THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

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CRL.A.No.1334 OF 2006

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AGAINST THE JUDGMENT IN SC.NO.55/2005 DATED 14.06.2006 OF THE COURT OF ADDITIONAL SESSIONS JUDGE (ADHOC-I), THODUPUZHA

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APPELLANT/ACCUSED:

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MADHU, S/O. PONNAPPAN PILLAI PANTHALANGAYIL VEETTIL, VENGALLOOR, PURAPUZHA KARA, THODUPUZHA TALUK.

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BY ADVS. SRI.K.K.CHANDRAN PILLAI (SR.) SMT.S.AMBILY

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RESPONDENT:

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

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BY SMT.S.L. SYLAJA, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1334 OF 2006

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JUDGMENT

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Dated this the 8^th day of April 2021

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The accused in SC.No.55/2005 on the file of the Court of Additional Sessions Judge (Adhoc-I), Thodupuzha has filed this appeal being aggrieved by the judgment dated 14.06.2006 whereby he was found guilty of offence under sections 8(1) and (2) of the Abkari Act and has been convicted and sentenced to undergo rigorous imprisonment for 1 year and to pay a fine of Rs.1 lakh and in default of payment of fine, to undergo simple imprisonment for a period of six months.

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The case of the prosecution is that on 11.10.2001 at 7 pm, PW1 the Excise Range Inspector who was on patrol duty at Vazhithala area, found the accused in possession of a white plastic cover containing a white can of 2½ litres capacity filled with contraband arrack. According to the prosecution, the accused abandoned the plastic bag and attempted to run away, but he was chased and apprehended at a distance of about 30 feet. It is stated that the accused was arrested on the spot, sample of the contraband articles were taken in a 375 ml capacity bottle, which was sealed and recovered as per mahazar. It is further stated that the remaining arrack was also sealed. MO1 produced is the can with the arrack and

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CRL.A.No.1334 OF 2006

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MO2 is the plastic cover in which the can was kept. Before the Court below prosecution examined PW1 to PW5 and Exts. P1 to P5 were marked. On the basis of the evidence on record, the Court below found the accused guilty of the offence and convicted him and imposed on him the sentence referred above.

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Heard Smt.S. Ambily, learned counsel on behalf of the appellant and Smt.Shylaja, learned Public Prosecutor on behalf of the State.

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The counsel for the appellant contended that the prosecution has failed to prove the arrest of the accused as well as the seizure of the contraband articles, beyond any reasonable doubt. According to the counsel, no arrest memo has been produced and marked by the prosecution, which casts doubt about the arrest. Apart from that, it is submitted that according to PW1, the accused was chased and apprehended but he has stated that the persons who chased were the guards who accompanied. The counsel points out that the guards were not examined in the case and apart from the statement of PW1, there is nothing else to support the said version, particularly since the arrest memo has not been produced and marked in the case. It is further stated that PW1 admitted during the cross examination that the accused has not been identified properly. The counsel points out that

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CRL.A.No.1334 OF 2006

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in the cross examination, PW1 has stated that the mahazar does not mention about identification of the accused and that it also does not state the persons who chased the accused. He further says that he does not remember whether the accused had signed MO1 . He admits that MO1 does not show the signature of the accused. It is the case of the counsel for the appellant that the above circumstances add to doubts regarding the arrest and since the arrest memo is not produced, the accused is entitled to the benefit of doubt. I find considerable force in the contentions put forward by the counsel for the appellant. This Court in Ramankutty v. Excise Inspector [2013 (3) KHC 308] held that the failure to produce the arrest memo is fatal for the prosecution case and that if the arrest was not proved beyond reasonable doubt, the entire case of the prosecution will fall. The dictum laid down in Ramankutty (supra) was later followed by this Court in the judgment dated 22.02.2021 in Raju @ Poten Raju v. State of Kerala (Crl.A.No.1993/2006).

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The counsel also relies on the judgment in Sumathy V. State of Kerala 2016 (4) KHC 225. Particular reference is made to paragraph 7 of the judgment, which reads thus;

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“7. Here, immediately after the arrest of the appellant, the contraband articles were seized at the place of occurrence, after taking sample. They failed to affix label in MO 1. Affixing label in the contraband articles and obtaining signature in the presence of the independent witnesses

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CRL.A.No.1334 OF 2006

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ensure the compliance of the procedure provided in the Abkari Act and Kerala Excise Manual for Crime - Detection, enquiry trials. The signatures should be secured in the label and seal the articles in the presence of the independent witnesses which will fasten the credibility of the evidence of the Excise Officials. In this case, PW 2 admitted that no label was found in the seized articles when he was examined before Court. When there is no label in the seized articles and there is violation of the procedures provided in the Kerala Excise Manual, more independent evidence is necessary to prove the seizure. Therefore, it is necessary to obtain the signature of the witnesses, the accused and the officer shall put his signature in the label affixed in the articles. When there is no signature of the witnesses, the accused and the officer in the label, no credibility can be fastened upon such evidence.”

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Reliance placed by the counsel for the appellant on the above judgment is justified, since the facts of this case are almost similar to the facts in the judgment referred above. Apart from the above discrepancies, on a perusal of the records, I find that Ext.P4 which is the forwarding note which has been marked in the case does not show the name of the Excise guard with whom the sample is to be sent. Even though the forwarding note is seen to have been counter signed by the Magistrate, the is no date written along with the initial so as to show the date on which the Magistrate had countersigned the document. Apart from this, the forwarding note says that the sample of arrack which is to be sent for chemical analysis bears the seal of the Court. There is no case for the prosecution that the seal which was put at the time of seizure was removed and another seal was put. In the

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CRL.A.No.1334 OF 2006

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light of the above discrepancies, the appellant is entitled to the benefit of doubt.

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In the result, the judgment dated 14.06.2006 in SC.No 55/2005 on the file of the Court of Additional Sessions Judge (AdhocI), Thodupuzha is set aside. The appellant is acquitted and set at liberty. Bail bonds if any executed by the appellant or on his behalf are cancelled. The appeal stands allowed.

Sd/-

T.R.RAVI

JUDGE

Madhu, S/O. Ponnappan Pillai v. State of Kerala

Case brief

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What did the court decide?

Madhu, S/O. Ponnappan Pillai v. State of Kerala

Case brief

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