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2013 DIGILAW 1092 (KER)

Mercy v. State of Kerala

2013-12-10

V.K.MOHANAN

body2013
Judgment : 1. Challenging the conviction and sentence under Section 55 (g) of the Abkari Act, imposed on the accused by judgment dated 23.07.2003 in S.C.No.611 of 1999 of the Court of Additional Sessions Judge (Adhoc-I), Kasaragod, the accused therein preferred this appeal. 2. The prosecution case is that: on 07.07.1998 at 1.15 p.m., the accused was found in possession of 10 litres of wash kept for the preparation of illicit arrack in an aluminium pot near the residential house of the accused at Cherumbachal in Kallar village against the provisions of the Abkari Act. Thus according to the prosecution, the accused, who is a lady, committed an offence punishable under Section 55 (g) of the Abkari Act. 3. During the trial of the case, PWs 1 to 3 were examined from the side of the prosecution and Exhibits P1 to P5 documents were produced and marked. MO1 aluminium pot was identified and marked as material object. The prosecution adduced the above evidence since the accused denied the charge for the offence under Section 55 (g) of the Kerala Abkari Act. The learned Judge of the trial court finally found that no inherent improbability or material contradiction or striking discrepancy is brought out in the evidence of prosecution witnesses against the accused and consequently the learned Judge accepted prosecution case as established and accordingly found that the accused is guilty under Section 55 (g) of the Kerala Abkari Act. Accordingly she is convicted thereunder. On such conviction, the accused is sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- and in default she is directed to undergo rigorous imprisonment for a further period of six months. Set off is allowed. The above findings and order of conviction and sentence are challenged in this appeal. 4. I have heard Adv.Sri. M. Ramesh Chander, the learned counsel for the appellant and Sri.N. Suresh, the learned Public Prosecutor for the State. 5. In order to establish the prosecution allegation in the present case, the prosecution has examined only three witnesses and produced five documents. Out of the three witnesses, except PW3, the Sub Inspector of Police who detected the crime, effected the seizure, conducted the investigation and laid the charge, the other two witnesses are independent, but they turned hostile to the prosecution. Out of the three witnesses, except PW3, the Sub Inspector of Police who detected the crime, effected the seizure, conducted the investigation and laid the charge, the other two witnesses are independent, but they turned hostile to the prosecution. Thus, when PW3 was examined, he deposed that on getting information about the sale of illicit arrack in the house of the accused, he proceeded to the house of the accused in a private jeep driven by PW1 and he conducted search in the house of the accused but no contraband article was recovered from the said house. But according to him he detected an aluminum pot near to a cement jar within three metres to the south of the residential house of the accused and the said pot contained 10 litres of wash. According to PW3, the said wash was seized and he drew samples and sealed the sample as well as the material objects including aluminum pot and thereafter he returned to the police station wherein he registered the First Information Report in Crime No.161 of 1998 of Rajapuram Police Station. He had also prepared forwarding note for sending the samples for chemical analysis and thus obtained chemical analysis report. Thus when PW3 was examined Exhibit P3 FIR, Exhibit P4 forwarding note and Exhibit P5 chemical analysis report were marked through him. PW3 also identified the aluminum pot as MO1 material object. Though PWs 1 and 2 turned hostile, they admitted their signatures and thus Exhibit P1 seizure mahazar and Exhibit P2 scene mahazar were marked through them respectively. On the basis of the above evidence and materials on record, the trial court found that the appellant/accused is guilty of the offence under Section 55 (g) of the Kerala Abkari Act. 6. The learned counsel for the appellant vehemently submits that the trial court is fully incorrect and illegal in convicting the appellant for the offence under Section 55 (g) of the Kerala Abkari Act since the prosecution has miserably failed in producing any srap of paper to connect the appellant/accused for the alleged offence. According to the learned counsel, no document is produced by the prosecution to show that the house in question or the property where the house is situated, belongs to the appellant. According to the learned counsel, no document is produced by the prosecution to show that the house in question or the property where the house is situated, belongs to the appellant. It is also pointed out that the prosecution had no specific case as to whether the property of the accused is having any compound wall and the prosecution has miserably failed even to show the exact extent of the property that belongs to the accused. So according to the learned counsel the available evidence and materials on record are no way helpful for the prosecution to implicate the accused for the offence alleged against her. But the trial court, ignoring the above vital defects, proceeded against the accused. The case of the prosecution rests solely on the evidence of PW3, the police official without any corroboration from independent evidence. Therefore, the conviction recorded by the trial court is liable to be interfered with. Per contra the learned Public Prosecutor submitted that the evidence of PW3, the Sub Inspector of Police who detected the crime is intact and his evidence is corroborated by the contemporary documents like Exhibit P1, Exhibit P3 and Exhibit P4 and therefore, the trial court is correct in its finding and no interference is warranted. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the evidence and materials on record. 8. In the light of the counter arguments and in view of the evidence and materials on record, the question which arose for consideration is whether the conviction recorded by the trial court, against the appellant for the offence under Section 55 (g) of the Kerala Abkari Act, is sustainable. At the outset it is to be noted that according to the prosecution, PW3 proceeded to the house of the accused on getting information to the effect that the accused is engaged in the sale of illicit arrack in her house. If that be so, it was incumbent upon PW3 to prepare a search memo and then proceed to the house of the accused for search in the present case. Though PW3 has deposed before the court that he had prepared search memo, the same is not seen produced during the trial of the case. The absence of such a vital document, according to me, will go against the prosecution. Though PW3 has deposed before the court that he had prepared search memo, the same is not seen produced during the trial of the case. The absence of such a vital document, according to me, will go against the prosecution. It is relevant to note that even though the purpose of PW3 was to conduct search in the house of the accused and he had conducted search, no material was seized from the said house. It is thereafter, according to PW3 that he detected MO1 aluminium pot near to the cement jar within three metres to the south of the residential house of the accused. So the very initiation of the present case itself is rendered as doubtful since PW3 failed to produce the search memo which he is expected to prepare as a condition precedent to the search in the house of the accused. 9. The specific case of the prosecution is that MO1 aluminium pot which contained 10 litres of wash was detected by PW3 allegedly from the property of the accused. As rightly pointed out by the learned counsel for the appellant, no document or oral evidence is produced by the prosecution to show that the property from where MO1 aluminium pot was recovered, belonged to the accused. As rightly pointed out by the learned counsel for the appellant, there is no evidence from the side of the prosecution, as to whether the property owned by the accused was surrounded by any compound wall and even the extent of property belonging to the accused is not mentioned any where in the prosecution materials. So absolutely, there is no legal evidence to show that the property, from where the MO1 aluminium pot was detected, belonged to the accused. Moreover it is further relevant to note that in the evidence of PW3, he has not deposed any thing about the involvement of the accused in keeping the aluminium pot or he never deposed that the accused was found handling with aluminium pot. In the chief examination, PW3 never said anything against the accused to connect her with the incident. Towards the last of the chief examination, PW3 deposed that "LANGUAGE" Even in the deposition of PW3, there is no whisper to the effect that the accused was found even adjacent to the MO1 aluminium pot or she was seen handling with the same. Towards the last of the chief examination, PW3 deposed that "LANGUAGE" Even in the deposition of PW3, there is no whisper to the effect that the accused was found even adjacent to the MO1 aluminium pot or she was seen handling with the same. Thus absolutely there is no evidence as such to show that the accused had got any nexus with the MO1 aluminium pot or that she has domain over MO1 aluminium pot. So there is no evidence to connect the accused with the alleged offence. On the basis of the above point alone, the appellant can be acquitted. 10. It is relevant to note that there are some other fundamental defects in the prosecution case. PW3 who detected the crime and allegedly seized the contraband articles has stated nothing in his chief examination about the further steps he had taken. During the cross- examination he stated that "Forwarding note 8_7_98 Hm .]aD_ Station Writer "LANGUAGE" Ext.P4, Forwarding note W Date correct "LANGUAGE" It is relevant to note that no property list is produced before this Court and absolutely there is no evidence as to when the property including the sample was produced before the court. But in the evidence of PW3, he admitted that even the date of the forwarding note is seen corrected. The evidence show that PW3 entrusted the forwarding note with the writer purportedly to produce the material objects and the samples before the court but the writer is not seen examined and as such, there is no evidence as to who produced the material objects and forwarding note before the court and when the same produced etc. There is also no evidence as to who was the custodian of the samples and the material objects till the same was produced before the court. So, according to me, no sanctity can be attached to Exhibit P8 chemical analysis report. A Devision Bench of this Court in the decision in Ravi v. State of Kerala reported in 2011(3)KLT 353, has held that there should be explanation for the delay when there is delayed production of the property. It was also held that the prosecution has a duty to prove that it was the same samples taken from the contraband liquor seized from the accused, that had reached the hands of the Chemical Examiner in a fool proof condition. It was also held that the prosecution has a duty to prove that it was the same samples taken from the contraband liquor seized from the accused, that had reached the hands of the Chemical Examiner in a fool proof condition. Going by the evidence on record especially in view of the deposition of PW3 and the documents produced, it can be seen that the prosecution has failed to show on which date the samples as well as the material objects were produced before the court and what was the reason for the delay, if any, etc. The evidence is not sufficient to show that the samples were kept intact without any scope for tampering with the same and that the same reached the hands of the chemical examiner safely. So the prosecution case and the evidence and materials on record are not sufficient to withstand the test laid down by the Division Bench in the decision cited supra. Therefore, it is unsafe to convict the appellant for the offence under Section 55(g) of the Abkari Act warranting severe punishment. 11. For the aforesaid reasons, I am of the firm view that the prosecution has miserably failed to prove its allegation against the appellant beyond reasonable doubt by producing sufficient evidence. The trial court miserably failed to consider the above aspect. Therefore, I am unable to concur the finding and the conviction recorded by the trial court. Accordingly the conviction recorded by the trial court against the appellant for the offence punishable under Section 55(g) of the Abkari Act is set aside. In the result, this appeal is allowed setting aside the judgment dated 23.07.2013 in S.C.No.611 of 1999 of the learned Additional Sessions Judge (Adhoc-I), Kasaragod and the appellant is acquitted of all charges levelled against her. The bail bond, if any, executed by the appellant/accused, shall stand cancelled and she is set at liberty.