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2014 DIGILAW 15 (KER)

Shirosh @ Biju v. State of Kerala

2014-01-03

P.BHAVADASAN

body2014
Judgment : 1. Two persons were prosecuted for the offence punishable under Section 55(a) of the Kerala Abkari Act. Both of them were found guilty. Therefore they were convicted and sentenced to undergo simple imprisonment for five years and also to pay fine of Rs.5,00,000/- each, with a default clause of six months. Set off as per law was allowed. 2. On 16.11.2007 at about 4 pm while PWs 2 and 3 Excise officials along with the other officers were inspecting vehicles that were passing by, they happened to see a Scorpio vehicle coming from the northern side driven by the 1st accused, in which the 2nd accused was also present. The vehicle was asked to be stopped. But it stopped about 50 meters away from the jeep, which had brought the excise officers to the spot. The allegation is that after stopping the Scorpio vehicle the accused took to their heels. They were chased and apprehended. The further allegation is that the 1st accused handed over the key of the vehicle, which was opened and the excise officers detected 25 Cans of 35 litres each containing spirit. PW3, the detecting officer makes mention of the sampling and labeling done and also the procedure followed by him in preparing Ext.P1 Mahazar. He speaks about having prepared the arrest memo with reference to A1 and A2 and also the property list. He claims to have obtained the details of the registered owner of the vehicle as per Ext.P10 certificate. PW3 also states that certain amounts were received on the search of the body of the 1st accused. He claims to have taken 200ml of samples from each of the cans and affixed label on them. He speaks about having prepared Ext.P1 Mahazar. He then claims to have returned to Excise Range Office and registered Crime No.24 of 2007 of Aluva Excise Range. Ext.P6 is the crime report. He also says that the inventory prepared by him at the time was sent to court. The further investigation was conducted by PW4. He speaks about preparation of Ext.P12 Scene Mahazar and obtained Ext.P13 Site Plan. According to him, the articles, which were produced before court were returned to the Excise Office for safe custody and while so due to leakage 248.4 litres of spirit were lost. The further investigation was conducted by PW4. He speaks about preparation of Ext.P12 Scene Mahazar and obtained Ext.P13 Site Plan. According to him, the articles, which were produced before court were returned to the Excise Office for safe custody and while so due to leakage 248.4 litres of spirit were lost. According to PW4, the Range Inspector Mr.Benchamin prepared Mahazar for the same and forwarded to the J.F.C.M. Court concerned. On 15.06.2010 the J.F.C.M Court, Aluva visited the Range Office and prepared an inventory of the articles found in the place and in the Excise Office. The said proceedings was marked as Ext.P14. Inventory was prepared by Sri. M.S. Balakrishnan, which was marked as Ext.P15. He claims to have recorded statement of witnesses, completed investigation and laid the final report. 3. The Court, before which, final report was laid, took cognizance of the offences. Finding that the offences were exclusively triable by a Court of Sessions, the said court committed the case to Sessions Court, Ernakulam. That Court made over the case to Additional Sessions Court, (Adhoc- III), North Paravur for trial and disposal. The latter Court, on receipt of records, framed charges for the offence punishable under Section 55(a) of the Kerala Abkari Act, to which the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had PWs 1 to 4 examined and had Exts.P1 to P16 marked. MOs 1 series were got identified and marked. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and maintained that they are innocent. They further stated that they have been falsely implicated. According to them they have reached the Market in Aluva on 14.11.2007 and they have gone to a bar to take liquor. There ensued a quarrel and scuffle in the bar, which involved the accused persons also. Next day they were produced before court, then they realised that they have been implicated in an Abkari Offence. 4. Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. They chose to adduce no evidence. The court below presumably impressed by the evidence of PWs 2 and 3, found the accused guilty and conviction and sentence as already mentioned followed. 5. 4. Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. They chose to adduce no evidence. The court below presumably impressed by the evidence of PWs 2 and 3, found the accused guilty and conviction and sentence as already mentioned followed. 5. The learned counsel appearing for the appellants in these appeals contended that the court below not justified in blindly accepting the evidence of PWs 2 and 3 in coming to the conclusion that the offence has been made out. Eventhough, PW1, an independent witness was examined, he did not support the prosecution and there was no attempt from the prosecution to prove that the labels, which are alleged to contain the signatures of the witness namely PW1 and other persons were in fact that of PW1. In other words the learned counsel contended that even after PW1 denied having seen the sampling and labeling there was no attempt from the prosecution to confront the witness with the labels which contained his signatures and to ascertain whether the signatures belonged to him. PW1 categorically denied that he had seen the sampling by PW3. Learned counsel then drew the attention of the court to the evidence of PW4, who pointed out that during the period when the articles were kept in the office of the Excise Range, Aluva, due to leakage about 380 litres of spirit were lost and inventory for that purpose were prepare by Sri. Benchamin and produced before the court concerned. Surprisingly enough according to the learned counsel, that inventory has not been produced nor is the said Benchamin examined. Drawing attention to Ext.P15, the inventory said to have been prepared by one Balakrishnan, on the basis on Ext.P14 inventory prepared by the learned Magistrate. The learned counsel pointed out that Ext.P15 reached court on 10.06.2006 which is prior to the date of incident of this case, that is 16.11.2007. The learned counsel then referred to Ext.P15 and pointed out that Sri. Balakrishnan made mention of only 18 cans of spirit with 35 litres capacity whereas the learned Magistrate in Ext.P14 made mention of 25 cans. It is also significant to notice according to the learned counsel for the appellants that neither Sri. The learned counsel then referred to Ext.P15 and pointed out that Sri. Balakrishnan made mention of only 18 cans of spirit with 35 litres capacity whereas the learned Magistrate in Ext.P14 made mention of 25 cans. It is also significant to notice according to the learned counsel for the appellants that neither Sri. Balakrishnan nor the learned JFCM have mentioned the names of the witnesses and the accused whose names and signatures are claimed to have appeared on the labels affixed on the cans. There is thus nothing to show according to the learned Magistrate that the labels found on the cans by the learned Magistrate or Sri. Balakrishnan were those found on the cans seized from the accused persons. It is also significant to notice according to the learned counsel for the appellants that neither the said Balakrishnan nor the learned Magistrate, who prepared the inventory had also examined. In short, the learned counsel contended that there is no convincing evidence to show that the articles produced before the court were the articles seized from the accused persons. This infirmity has been unfortunately been overlooked by the court below and that vitiates the conviction and sentence. 6. The learned Public Prosecutor on the other hand contended that going by Ext.P7 property list prepared by PW3 was produced before court on the very next day itself and that shows the articles were in fact produced before the court. Ext.P1 Mahazar, which is a contemporaneous document gives the entire details regarding the detention and that guarantees the seizure said to have been made by Pw3 in the presence of PW2 and others. The learned Public Prosecutor contended that eventhough the defence has set up a case of quarrel and scuffle in a bar no evidence were adduced in support of their case and there is no reason to reject the prosecution case at all. May be there are certain infirmity in the prosecution case. But the evidence of PWs 2 and 3 taken along with the production of Ext.P7 property list in the court on the very next day itself and also the recitals in Ext.P1 leave one in no doubt that the articles were in fact seized as alleged by the prosecution. Therefore there are no grounds to interfere with the conviction and sentence. 7. PWs 2 and 3 are the Excise Officers, among whom PW3 is the Detecting Officer. Therefore there are no grounds to interfere with the conviction and sentence. 7. PWs 2 and 3 are the Excise Officers, among whom PW3 is the Detecting Officer. Both of them say that while they were checking the vehicles on the road, they happened to seen a Scorpio coming from the northern side, which was asked to stop by them. Their evidence is uniform to the effect that the Scorpio van stopped about 50 meters away from the jeep from where the Excise Officers have dismounted and were checking the vehicles. Of course PW2 would say that after the Scorpio vehicle was stopped, the accused took to their heels. So also PW3. But according to PW2 they were chased in the jeep while he later said that they ran after them. PW3 also would say that they were chased and apprehended. 8. PWs 2 and 3 do say about the seizure of 25 cans of 35 litres each containing spirit, which they detected by taste and smell. PW3 then says about the sampling in detail and also sealing the balance articles and affixture of labels containing the signatures of the accused and the witnesses. Pw3 then says about having returned to the Excise Range Office and registered crime as per Ext.P6 crime and occurrence report. 9. Ext.P16 is the chemical analysis report, which shows the extent of the ethyl alcohol taken as the samples. 10. PW1 is the independent witness examined by the prosecution. Strongly enough even though he had stated that he had seen that the accused coming in the vehicle made mention of PWs 2 and 3, his evidence is to the effect that he did not see the sampling of the articles nor the affixture of signatures on any of the samples or on the cans except that he had signed in the Mahazar namely Ext.P1. Even though he did not support the prosecution that there was no attempt from the side of prosecution to confront him with his signatures which the prosecution alleges were present in the balance cans which were seized from the possession of 1st and 2nd accused. There is thus nothing to show that the labels affixed on the 25 cans contained the signature of PW1. 11. There is thus nothing to show that the labels affixed on the 25 cans contained the signature of PW1. 11. Apart from the above infirmity, it is significant to notice that Pw4 would say that after the articles were produced in court they were entrusted back to the Excise Officers to be stored in the Excise Range Office in safe custody. During that period due to leakage a good quantity of spirit was lost. PW4 would say that one Officer by name Benchamin had prepared an inventory and produced before court. In the inventory and produce before court. In the inventory prepared by the said Benchamin, it was mentioned that 248 litres of spirit were lost. 12. It is seen from the records that Ext.P14 is the proceedings by the JFCM concerned, who had visited the Excise Range Office on being intimated about the loss of spirit due to leakage. In his proceedings he had inspected 25 cans and mentioned that most of the cans contained the labels containing the signatures of the witnesses and the accused and also their names. Strangely enough the learned Magistrate has not mention the names found on those labels. There is nothing therefore to show that the names of the accused or the witnesses including PW1 appear on the labels or seen by the Magistrate. What is more significant is that Ext.P15, which is an inventory said to have been prepared by Sri. Balakrishnan seems to have reached the court on 10.06.2006. It may be remembered that the detection in this case was on 15.11.2007. Further, Ext.P15 made mention of only 18 cans whereas Ext.P14 made mention of 25 cans. Then again Ext.P15 made mention of the personal seal found on the cans, which is conspicuously absent in Ext.P14. It is also significant to notice that neither Balakrishnan nor the J.F.C.M., who prepared Exts.P14 and P15 are seen examined in these proceedings. 13. In short, there seems to be considerable force in the submission made by the learned counsel for the appellant that the articles later produced before the court were not the articles which were alleged to have been seized from the accused persons. 14. The mere fact that Ext.P1 Mahazar prepared is a contemporaneous document nor production of Ext.P7 property list on the very next date before the court then held the prosecution in the above facts and circumstances of the case. 14. The mere fact that Ext.P1 Mahazar prepared is a contemporaneous document nor production of Ext.P7 property list on the very next date before the court then held the prosecution in the above facts and circumstances of the case. 15. In the above circumstances, the non-confrontation of the signature of PW1 on the labels on the cans assumes importances. He has categorically denied having signed in any other documents except Ext.P1. 16. These aspects have been overlooked by the court below and the court below was carried away by the fact that Ext.P7 has been produced on the very next day itself and was also Ext.P8 specimen impression was also produced before the court. 17. It is difficult to understand as to what prevented the prosecution from producing the Mahazar said to have been prepared by Sri. Benchamin and examining him. If one is to go by the evidence adduced in the prosecution it has to be seen that even after the preparation of inventory by Sri. Benchamin further spirit was lost due to leakage when the inventory was prepared by Sri. Balakrishnan. But surprisingly enough neither Benchamin nor Balarishnan or the JFCM who prepared the inventories are examined. 18. Under these circumstances, it is difficult to come to the conclusion that the offence against the accused have been proved beyond any reasonable doubt. 19. For the above reasons, these appeals are allowed. The conviction and sentence passed by the court below for the offence under Section 55(a) of the Kerala Abkari Act are set aside. It is held that the prosecution has not succeeded in establishing its case beyond reasonable doubt. It any of the accused is in custody, he shall be released forthwith. If the fine amounts have already been paid, the same shall be refunded to the respective accused.