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2018 DIGILAW 874 (KER)

Joy S/o. Joseph v. Circle Inspector of Police

2018-10-30

ANNIE JOHN

body2018
JUDGMENT : 1. This appeal has been preferred by the accused in S.C.No.165 of 2010 on the files of the Additional Sessions Judge, Adhoc III (Fast Track Court-III), Palakkad. He was charge sheeted by the police for the offences punishable under Section 8(1) r/w. 8(2) of the Kerala Abkari Act (for short, 'the Act'). 2. The allegation is that he was found in possession of 20 litres of arrack in a tyre tube on 23.11.2007. The prosecution examined 5 witnesses and produced 9 documents and 1 material object. After evaluating the entire evidence, the trial court found the appellant guilty, convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 lakh. 3. The offence was detected by PW5 Circle Inspector. According to him, while he was on patrol duty on 23.11.2007, at about 12.30 p.m., at the property belonged to the appellant, on the western side of Kottamala Ooru at Moochikkadavu in Kottathara Village, the accused was found in possession of a tyre tube containing about 20 litres of arrack and thereafter, PW5, the then Circle Inspector registered Crime No.80/2007 of Sholayur Police Station. The lower court after receipt of the document and after getting the appellant framed charge under Section 8(1) r/w. 8(2) of the Act. Since he pleaded not guilty, further it was posted for trial. 4. On the side of the prosecution, PW1 to PW5 were examined and Exts.P1 to P9 and material object MO1 were marked. On closure of the prosecution evidence, the accused was examined under Section 313 of the Cr.P.C. The prosecution and defence were then heard. As there was no scope for acquitting the accused under Section 232 of the Cr.P.C., he was called upon to enter on his defence. No evidence was adduced by the appellant. 5. Now the question to be considered is whether the conviction and sentence passed by the Additional Sessions Judge, Ad hoc-III (Fast Track Court-III), Palakkad is sustainable or not. The concerned court has relied on the evidence of PW1 as well as PW5 and convicted the accused under Section 8(1) r/w.8(2) of the Act. PW5 is the Circle Inspector, who has given evidence before the court below. The concerned court has relied on the evidence of PW1 as well as PW5 and convicted the accused under Section 8(1) r/w.8(2) of the Act. PW5 is the Circle Inspector, who has given evidence before the court below. According to him on 23.11.2007, while he was conducting patrol duty, at about 12 noon, when he reached the place Moochikkadavu, he got information that a person by name Thaikkoottathil Joy (the appellant) had collected arrack in his property. On getting information, PW5 reached the property on the western side of Kottamala Ooru at about 12.30 p.m. There he found the accused coming with a tyre tube on his head. On seeing the police party, the appellant attempted to escape from the spot. PW5 intercepted the appellant and got down the tyre rube from his head. Thereafter he untied the knot on one side of the tyre tube and inspected the liquid found in it. After smelling and tasting the liquid, PW5 found that the tyre tube contained arrack. He arrested the accused at 1.00 p.m. and prepared Ext.P4 arrest memorandum and Ext.P5 inspection memorandum. Then he had given information regarding the arrest of the appellant to his wife. In fact, the tyre tube contained about 20 litres of arrack. PW5 took samples of the liquid from the tyre tube in two bottles and sealed the sample bottles and also the tyre tube. He also affixed label on them. The label contained his signature and also the signature of the appellant and the witnesses. PW5 has then seized the contraband articles from the possession of the appellant and prepared Ext.P1 mahazar. Then PW5 was in the box and he identified MO1 tyre tube which contained the arrack. PW5 has further deposed that he went to the Sholayur Police Station with the appellant and the articles and registered case against the appellant as per Ext.P6 F.I.R. He produced the material objects in the court as per Ext.P7 property list. He also took steps for sending the samples for chemical examination by preparing Ext.P8 forwarding note. 6. PW1 is the occurrence witness, who has accompanied PW5 at the time of detection of the offence. He has supported the case of PW5. PW2 is the independent witness. But he has not supported the case of the prosecution. He also took steps for sending the samples for chemical examination by preparing Ext.P8 forwarding note. 6. PW1 is the occurrence witness, who has accompanied PW5 at the time of detection of the offence. He has supported the case of PW5. PW2 is the independent witness. But he has not supported the case of the prosecution. According to him, he has not seen the police party seizing the tyre tube containing arrack from the possession of the appellant. But he admitted his signature in Ext.P1 mahazar. But he denied the signature in Ext.P4 arrest memorandum. 7. In order to prove the case of the prosecution, Ext.P9 chemical examination report was produced. The learned counsel for the appellant has argued that the independent witnesses were turned hostile to the prosecution. So the evidence adduced by PW1 as well as PW5 cannot be accepted as they were interested witnesses. But, it is a well settled fact that even though the independent witnesses were turned hostile to the prosecution, the court can discard their evidence and accept the evidence of the detecting officer as well as the accompanying officer if their evidence inspire confidence, then it can be acted upon. It has held in Vikraman v. State [ 2007 (1) KLT 1010 , Paravan v. State [ 2007 (1) KLT 396 and Madhavan v. State [ 2009 (3) KLJ 418 ] that if the evidence of the detecting officer is credible and believable, then the hostility shown by the independent mahazar witnesses need not deter the court from considering the testimony of the detecting officer and proceeding accordingly. 8. It is true that PW1 and PW5 are officers of the police department and PW5 has detected the offence and PW1 is the occurrence witness. So, naturally, the defence case is that their evidence cannot be reliable as they belongs to the same department. On the other hand, it is to be noted that PW1 & PW5 had in the proper performance of their official duty and it cannot relegate them to the category of interested witnesses, for whose testimony, as a rule of prudence, courts usually insist on ocular corroboration. It is a part of the duty of every such public official to detect offence and bring the offenders to book the case, as alleged. 9. The evidence of a police officer stands on the same footing as that of any other witness. It is a part of the duty of every such public official to detect offence and bring the offenders to book the case, as alleged. 9. The evidence of a police officer stands on the same footing as that of any other witness. The evidence of such officers must be considered on its own merits and its own inherent improbabilities. It has held in State of Kerala v. Choyunni [ 1980 KLT 107 ] that it is not the law that such evidence is prima facie unacceptable or that it cannot be the basis of conviction. The rule of corroboration is only a rule of prudence. When the court after a careful scrutiny is satisfied that the evidence of police officers is true and reliable conviction can be based solely on such testimony. 10. Undoubtedly the prosecution has succeeded in proving that the appellant/ accused was carrying a tyre tube containing 20 litres of arrack. PW5 has detected the offence and seized MO1 tyre tube from the custody of the appellant. There was a suggestive question on the side of the defence that PW5 has got any enmity towards the appellant. No such enmity was brought out. During evidence it was found that the MO1 tyre tube did not contain any liquid. But at the time of the seizure MO1 tyre tube, it was verified by the lower court below and found that it contained 20 litres of arrack. It was also proved that PW5 has taken samples in the presence of PW1, accused and independent witnesses. Now MO1 tyre tube did not contain any label. It was endorsed by the learned Magistrate on Ext.P7 property list that the tyre tube was returned to the police station for safe custody. It was produced before the court only at the time of the trial of the case. It was observed by the court below that by passage of time, the label on the tyre tube has been lost. 11. It has held in Madhavan v. State of Kerala [ 2009(3) KLJ 418 ], which reads thus : “It is true that except on MO2 aluminium pot having a capacity of 10 litres, the other MOs before court did not have labels at the time of trial. It should not be forgotten that eventhough the detection of the offence was on 19.03.1999, the trial of the case was in February, 2003. It should not be forgotten that eventhough the detection of the offence was on 19.03.1999, the trial of the case was in February, 2003. Until then, the properties other than the samples were entrusted to the custody of the Station House Officer. Hence the absence of labels on the properties when they were produced again before the court, does not falsify the credible testimony of PWs 1 and 4. Labels had been affixed on all the MOs from the scene of detection itself. The procedure which was followed was that after production of the properties before the J.F.C.M. all the properties except the samples were returned to the charging officer for being retained in the Police Station till the date of trial. Large quantities of liquor produced before courts in the various abkari cases, if stored in court premises, may pose the danger of fire hazard. That apart, there is also dearth of space in our courts to store huge quantities of liquor. Hence, it is quite possible that the labels on the rest of the MOs were either lost in transit or got effaced during their storage in the Police Station. But that does not render the prosecution case suspect to any extent.” 12. So, on the basis of the oral testimony of PW1 and PW5 and production of MO1 and MO2 and arrest memo along with signature of the accused, it is sufficient enough to come to a conclusion that the appellant is guilty of the offence under Section 8(1) & (2) of the Kerala Abkari Act. Going through the judgment, I find that the lower court has relied on the evidence of PW1 and PW5 and MO1 for convicting the accused by invoking Section 8(1) & (2) of the Abkari Act. In this connection, it is very important to note that PW5 is the detecting officer, who has filed charge sheet before the court. PW4 is the Sub Inspector of Police, who conducted investigation of the case. 13. The learned counsel for the appellant has submitted that the detecting officer, who was examined as PW5 was the then Circle Inspector of Sholayur Police Station, Palakkad District and he himself has filed the Charge Sheet before the court below. PW4 is the Sub Inspector of Sholayur Police Station, who has conducted investigation in this case. 13. The learned counsel for the appellant has submitted that the detecting officer, who was examined as PW5 was the then Circle Inspector of Sholayur Police Station, Palakkad District and he himself has filed the Charge Sheet before the court below. PW4 is the Sub Inspector of Sholayur Police Station, who has conducted investigation in this case. The learned counsel for the appellant has submitted that it is unfair on the part of the prosecution to appoint the Sub Inspector of Police of the same Police Station to investigate the case. Here, in this case, the superior officer, who is the Circle Inspector of Police has detected the offence and if that be so, the case would have been investigated by a superior officer of PW5. 14. In this connection, the learned counsel for the appellant has cited a decision held in Naushad v. State of Kerala [ 2000 (1) KLT 785 ] wherein it has held that “when the complainants himself is a Police-Official, the investigation should have been conducted by his top ranking officer and the final report also ought to have been filed by the higher official. A complainant being a police officer cannot be an Investigating Officer. For, in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous information recorded under Ss.154 or 155 Cr.P.C. and previous statement of the witness, being a police officer, complaint recorded, under S.161 Cr.P.C., enjoined in S.145 and 157 of the Indian Evidence Act and proviso of S.162 Cr.P.C”. 15. In the instant case, PW5 is the Circle Inspector of Sholayur Police Station. But the Sub Inspector of the same Police Station has investigated the case. In fact, the investigation would have been conducted by the superior officer of the Sholayur Police Station. Thus, an incurable infirmity and flaw have been committed by the prosecution, quite against the proposition of law. 16. Even though, the prosecution has succeeded in proving that the contraband articles were seized from the possession of the appellant, the incurable infirmity and flaw, which has committed by the prosecution by appointing the Sub Inspector of Police for investigating the crime is against the proposition of law. Therefore, on that score itself, the appellant is entitled to get an order of acquittal. 17. Therefore, on that score itself, the appellant is entitled to get an order of acquittal. 17. Furthermore, PW5, Circle Inspector, who is the detecting officer himself has verified the investigation and filed Charge Sheet before the court below. So, the complainant, in this case himself was acting as a person, verifying the Charge Sheet filed by PW4, the investigating officer. It also proves that there is a violation of principles of fair and impartial investigation. Moreover, there should be an independent investigation if the complainant himself conduct the investigation caused miscarriage of justice to the accused qua fair investigation also. Therefore, I find that no fair investigation was done in this case. Hence, the appellant is entitled to get acquittal as prayed for. 18. Resultantly, this appeal succeeds and it is allowed. The prosecution is held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation. In the result, the conviction and sentence imposed on the appellant in S.C.No.165/2010 on the file of the Additional Sessions Judge, Ad hoc III, (Fast Track Court III), Palakkad is hereby set aside. The appellant is directed to be set at liberty forthwith unless warranted in any other cases. The bail bond, if any executed, shall stand cancelled.