Allowed

Anil Kumar, S/O. Bhadran, v. Sub Inspector of Police

Kerala HC22 Mar 2021CRL.A/2491/2006

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the revision petition, quashing a conviction under the Abkari Act. The court held that the absence of a forwarding note and inordinate delay in forwarding the sample certified the prosecution failed to prove the case beyond reasonable doubt. The one-man investigation rule was overruled.

What did the court decide?

The impugned order convicting and sentencing the appellant is set aside. The accused is set at liberty forthwith.

Anil Kumar, S/O. Bhadran, Vs Sub… — Constitutional and Fundamental Rights | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

¶4

MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943

¶5

CRL.A.No.2491 OF 2006

¶6

AGAINST THE JUDGMENT IN SESSIONS CASE No.822/2001 DATED 3011-2006 OF ADDITIONAL DISTRICT AND SESSIONS COURT(ADHOC)-I,

¶7

KOLLAM

¶8

(C.P NO. 49/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PARAVOOR)

¶9

APPELLANT/ACCUSED:

¶10

ANIL KUMAR, S/O. BHADRAN, KEELATHENGIL VEEDU,, THEKKEVILA CHERRY, MUNDAKKAL VILLAGE, KOLLAM.

¶11

BY ADV. SRI.S.SANTHOSH KUMAR

¶12

RESPONDENT/S:

¶13

THE SUB INSPECTOR OF POLICE, PARAVOOR POLICE STATION, KOLLAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

¶14

R1 BY PUBLIC PROSECUTOR

¶15

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.01.2021, THE COURT ON 22-03-2021 DELIVERED THE FOLLOWING:

¶16

Crl.Appeal No.2491 of 2006

¶17

-:2:-

¶18

MARY JOSEPH, J.

¶19

- - - - Crl.Appeal No.2491 of 2006

¶20

- - - - Dated this the 22^nd day of March, 2021

¶21

JUDGMENT

¶22

The appeal on hand is directed against judgment dated 30.11.2006 of Additional District and Sessions Judge (adhoc) Court-I, Kollam (for short, 'the trial court') in S.C No.822 of 2001. By the impugned judgment, the trial court found the accused guilty and convicted and sentenced him to undergo Rigorous Imprisonment for a period of 1 year and to pay fine of Rs.1,00,000/-(Rupees one lakh only) under Section 55(i) of the Abkari Act (for short, 'the Act'). The accused is the appellant. The contention of the learned counsel for the appellant was that the prosecution case is vitiated for non-production of forwarding note in evidence, unexplained delay in production of properties seized before the court as well as the Chemical Examiner's Laboratory and conduct of detection and investigation by one and the same officer.

¶23

The learned counsel has relied on Vijayan @Pattalam Vijayan and Another V. State of Kerala [2018(2) KHC 814],

¶24

-:3:-

¶25

Crl.Appeal No.2491 of 2006

¶26

Krishnankutty @ Appu V. State of Kerala [2018 (5) KHC 463] and Gireesh V. State of Kerala [2019 (4) KLT 79] to rest his contentions.

¶27

The learned Public Prosecutor on the contrary has submitted that the argument advanced by the learned counsel for the appellant that the prosecution is vitiated for conduct of detection and investigation by the very same officer, will not sustain. According to him, the dictum in Krishnankutty @ Appu supra relied on by the learned counsel for the accused was laid by a Single Judge of this Court relying on Mohan Lal V. State of Punjab [2018 (4) KHC 387], which stands overruled by the Apex Court in Mukesh Singh V. State (Narcotic Branch of Delhi) [(2020) 10 SCC 120].

¶28

4 . In the backdrop of the rival arguments advanced by the parties, the primary venture of this court is to narrate the facts and the evidence adduced by the prosecution as well as the defence in the case on hand:

¶29

At 10.45 p.m on 19.04.1999, the accused was found in possession of and engaged in the sale of some liquor. The accused was found on the back side of the compound wall of toddy shop bearing No.91 situated in building 'Ramanilayam'-No.24/259 in Paravoor

¶30

-:4:-

¶31

Crl.Appeal No.2491 of 2006

¶32

Municipality. On being convinced from the preliminary examination held that the liquor contained in 50 plastic covers was arrack, the accused was arrested. He was produced before Judicial First Class Magistrate Court, Paravoor on 20.04.1999 and was remanded to judicial custody. The contraband alongwith the sample drawn from the spot were forwarded to the court. On completion of the investigation, a Final Report, chargesheeting the accused for offences punishable under Section 55 (a) and (i) of the Act was prepared and laid before Judicial First Class Magistrate Court, Paravoor. The offences for which the accused stands chargesheeted by the Final Report being exclusively triable by Court of Sessions, the case was committed thereto by the Magistrate vide order passed on 19.10.2000 in C.P No.49/1999. The case was then made over to Principal Assistant Sessions Judge, Kollam and thereafter was transferred to the trial court for trial and disposal.

¶33

5 . The accused entered appearance on service of summons on him. After holding a preliminary hearing of the prosecution as well as the accused, charge was framed against him for the offences punishable under Sections 55 (a) and (i) of the Act. It when read over and explained by the trial court, the accused pleaded not guilty. The trial was scheduled and held in the above circumstances.

¶34

Crl.Appeal No.2491 of 2006

¶35

-:5:-

¶36

6 . On the side of the prosecution, PWs 1 to 5 were examined and Exts.P1 to P5 and MO I and MO II were marked. On closure of the prosecution evidence, the accused was questioned under Section 313 (1) (b) Cr.P.C, on the basis of the incriminating circumstances brought against him in evidence by the prosecution. The prosecution then was heard under Section 232 Cr.P.C. Grounds having not been made out to record an order of acquittal in favour of the accused, he was called upon to enter on his defence. He did not adduce any evidence in defence. The evidence adduced by the prosecution was appreciated by the trial court and a finding of guilt of the accused for an offence punishable under Section 55(i) of the Act was arrived at. Thereupon, the accused was convicted and sentenced to undergo punishment.

¶37

7 . In a case wherein the defence failed to adduce any evidence, the trial court has only to reach a conclusion after appreciating the evidence of the prosecution alone, which consist of depositions of PWs 1 to 5, documentary evidence of Exts.P1 to P5 and material objects marked as MO I and MO II. It is pertinent to note from a glance at the depositions of PW2, PW3 and PW4 that all of them were independent witnesses of the prosecution but by denying to have witnessed the seizure of the contraband, they turned hostile to the prosecution. PW1

¶38

-:6:-

¶39

Crl.Appeal No.2491 of 2006

¶40

is none other than a Police Constable of Paravoor Police Station attached to the team headed by PW5, who detected the offence. PW5 is none other than the Sub Inspector of Police, Paravoor and has stated that while on patrol duty, an information was received by him that somebody was engaged in the sale of arrack near the Municipal Private bus stand on the back side of the compound wall of toddy shop No.91. Consequent to the information, alongwith a team of Officers, he proceeded to the spot and reached there. Three persons were found standing on the eastern corner of the compound wall, one holding an yellow kit. On watching the officers proceeding towards, all of them attempted to escape. One who carried the yellow kit had thrown it away on his struggle to escape. He was chased and caught. Others jumped the compound wall and escaped. The accused caught was interrogated by PW5. The yellow kit was seized and opened. It was found to contain 50 plastic covers filled with some liquor. One cover was opened by PW5 and the liquor was poured into a glass of 150ml capacity. The liquor was smelled, tasted and identified as arrack. PW1 was also made to smell and taste it. From a house situated nearby, a basin was brought. All the 50 covers were opened and the liquor therefrom was poured into the basin. 375 ml was taken as sample and the residue was

¶41

Crl.Appeal No.2491 of 2006

¶42

-:7:-

¶43

poured into a Can having capacity of 10 liters. The sample alongwith the residue were sealed at the spot itself and the accused was also arrested. Rs.750/- was seized from the pocket of the shirt worn by the accused. Signatures were put by PW5 and independent witnesses available there on a label and that was affixed on the Can. The accused alongwith the sample and the residue left were taken to the Police Station and there, Crime No.114/1999 was registered against the accused. The accused was sent to the court alongwith a remand application on 20.04.1999. Three persons were arrayed as accused in the FIR but during the course of investigation, the names of two were deleted on the basis of the information collected that those were available at the spot of seizure only for consumption of liquor. A forwarding note demanding chemical examination of the sample was prepared. The sample was forwarded to the Chemical Examiner's Laboratory alongwith the forwarding note. Certificate of Analysis was obtained from the Chemical Examiner, wherein the sample examined was certified as containing 24.71% by volume of Ethyl Alcohol. Thereupon, a Final Report was prepared chargesheeting the accused for offences under Sections 55(a) and (i) of the Act and laid before the court.

¶44

Crl.Appeal No.2491 of 2006

¶45

-:8:-

¶46

During examination under Section 313 (1)(b) Cr.P.C, the accused has explained his presence at the spot as for consumption of liquor. According to him, two others were also there, but could not be caught by the Officers.

¶47

9 . The contention firstly advanced by the learned counsel for the appellant was that forwarding note is not forthcoming in evidence. As already stated, Exts.P1 to P5 alone were brought on record in evidence by the prosecution and forwarding note is not produced as rightly putforth by the learned counsel for the appellant. In Vijayan supra, this Court has observed that when the forwarding note containing the sample seal impression was not made available to the Chemical Examiner's Laboratory, the reference made in the Certificate of Analysis that the sample forwarded for analysis was identified on the basis of the sample seal impression provided, will be of no basis and that will create a room for doubt about the identity of the sample. In Gireesh supra, this Court has held that in the absence of a forwarding note marked in evidence, the prosecution cannot be said to have proved it's case beyond reasonable doubt. Therefore, it cannot be held that the sample received and examined by the Chemical Examiner was the one drawn from the liquor seized by PW5 from the spot on 19.04.1999.

¶48

Crl.Appeal No.2491 of 2006

¶49

-:9:-

¶50

10. The forwarding note is nothing but a requisition of the Investigating Officer to the court to forward the sample taken from the contraband seized, for Chemical analysis. In prosecutions under the Act, the sample of the contraband will normally be forwarded to the Chemical Examiner's Laboratory alongwith a forwarding note. It provides in itself a space for affixture of an impression of the sample seal, which had already been affixed by the Detecting Officer on the contraband and the sample taken from the spot of seizure. Therefore, on the strength of the sample seal impression in the forwarding note, the Chemical Examiner would be able to identify the sample forwarded to it for analysis as the one drawn from the contraband liquor seized from the spot. Therefore, the sample forwarded to the Chemical Examiner's Laboratory could easily be identified by the Chemical Examiner, if the impression of the sample seal is affixed in the forwarding note.

¶51

11 . In the case on hand, forwarding note did not form part of the evidence adduced by the prosecution. Therefore, evenif, the Detecting Officer has got a case that a forwarding note was prepared by him during the course of investigation and produced before the court for the purpose of forwarding the sample to the chemical Examiner's

¶52

Crl.Appeal No.2491 of 2006

¶53

-:10:-

¶54

Laboratory for Chemical Examination, in the event of it not being marked in evidence, a claim cannot be raised by the prosecution that the sample examined by the Chemical Examiner was the same as the one drawn from the contraband seized.

¶55

12. Context being so, there is every justification for the defence to raise a contention that the sample examined by the Chemical Examiner was not the one drawn from the liquor seized from the spot. Tampering, if pleaded by the defence also cannot be ruled out. In the circumstances, there is every scope for a doubt to arise in the mind of the court and that necessarily has to be given in favour of the accused as was done by different benches of this Court in Gireesh and Vijayan supra.

¶56

The second contention was regarding the delay occurred in forwarding the sample to the court and to the Chemical Examiner's Laboratory for examination. It is contended by the learned counsel that inordinate delay of almost one month was occurred in the process of forwarding of the sample to the court and to get the same examined at the Chemical Examiner's Laboratory. On a scrutiny of the evidence tendered by PW1 and PW5, this Court is also convinced that, a cogent explanation for the delay is not furnished.

¶57

-:11:-

¶58

Crl.Appeal No.2491 of 2006

¶59

14. The offence was detected on 19.04.1999. List of property marked in evidence as Ext.P4 is dated 18.05.1999. The sample was found received by the Chemical Examiner's Laboratory for analysis on 19.05.1999. Therefore, there was delay of almost one month in forwarding the properties to the court and therefrom to the Chemical Examiner. Ext.P5, the Certificate of Chemical Analysis is dated 22.06.1999. Since the forwarding note was not marked in evidence, this Court is not in a position to say, the date on which the sample was forwarded to the court. However, inordinate delay was occurred in production of the properties before the court. Therefore, as rightly pointed out by the learned counsel, the prosecution and the trial held against the accused is vitiated. There is absolutely no evidence forthcoming from PW1 or PW5 regarding the safe custody of the properties. Any evidence on affixture of sample seal on the properties from the spot is not forthcoming. When evidence regarding the safe custody of the properties is lacking, there is every scope for a doubt to arise on the identity of the properties and it must go in favour of the accused.

¶60

15. The third argument was that the Detecting as well as the Investigating Officer in the prosecution being one and the same person

¶61

-:12:-

¶62

Crl.Appeal No.2491 of 2006

¶63

the trial is vitiated. The learned counsel has also relied on the dictum in Krishnankutty supra. The Apex Court has held in Mohan Lal's case supra that if the informant and investigating officer are one and the same person, the investigation is defective and vitiated because of infraction of constitutional guarantee of fair investigation and therefore, the judgment by which the accused stands convicted is unsustainable.

¶64

The Apex Court has held in Mukesh Singh supra that investigation by an Officer, who himself is informant/complainant in the case is not barred under the NDPS Act or the Cr.P.C. The court held that in a case wherein informant officer himself is the investigator, that by itself cannot be said to be a ground to hold the investigation as vitiated for the reason of bias or other allied factors. Thus Mohan Lal supra and other cases having the same impact are overruled. The dictum in Krishnankutty was laid by a Single Bench relying on Mohan Lal supra and therefore, it also stands overruled. The argument of the learned counsel for the defence that the informant and the investigating officer being the same person, the investigation is unfair and the accused is entitled to an order of acquittal is discarded being untenable.

¶65

Crl.Appeal No.2491 of 2006

¶66

-:13:-

¶67

17. On the basis of the discussions made hereinabove this Court has no hesitation to hold that the appellant is entitled to get the benefit of doubt and consequently to an order of acquittal.

¶68

In the result, appeal is allowed. The impugned order finding the accused guilty for the offence under Section 55(i) of the Act, convicting and sentencing him, is set aside. The bail bond of the accused is cancelled and he is set at liberty forthwith.

¶69

Sd/-

¶70

MARY JOSEPH, JUDGE

¶71

Anil Kumar, S/O. Bhadran, v. Sub Inspector of Police

Case brief

What is this about?

What did the court decide?

Anil Kumar, S/O. Bhadran, v. Sub Inspector of Police

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.C.Joseph Vs Federal Bank Ltd.

Ramachandran Nair Vs Bhagheeradhi Amma and Others

Sushama Narayanan Namboothiri Vs Abraham Kurian

S.Sanjeev Vs Janani K

Janani K Vs Sanjeev

Shyja Vs Janu