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Judgment
Justice V.K. Mohanan
The sole accused in S.C. No. 665 of 2004 of the court of Additional District and Sessions Judge(Adhoc), Fast Track Court-II, Pathanamthitta is the appellant as she is aggrieved by the judgment dated 2.5.2005 in the above sessions case by which she is convicted and sentenced for the offence u/s 8(2) of the Kerala Abkari Act. The case of the prosecution is that the accused was found keeping in her possession for the purpose of sale about 3 litres of arrack in a 5 litre black can on the northern courtyard of the residential building of the accused by name Thadathil veedu at Anchumukku in Koodal muri and the same was detected at about 6 p.m. on 20.5.2003 and thus, according to the Police, the accused had committed the offence punishable under Sections 8(1) and (2) of the Kerala Abkari Act and accordingly, Crime No. 85 of 2003 was registered in the Police Station for the said offence. On completing the investigation, report was filed in the Judicial First Class Magistrate Court-I, Pathanamthitta wherein C.P. No. 68 of 2004 was instituted and the learned Magistrate, by his proceedings dated 31.7.2004, committed the case to the Sessions Court wherein S.C. No. 665 of 2004 was instituted which is made over to the present trial court for disposal.
When the accused appeared, after hearing the prosecution and the defence, a formal charge was framed for the offences under Sections 8(1) and (2) of the Abkari Act which when read over to her, she denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence consisting of the oral testimony of Pws. 1 to 4 and Exts. P1 to P8 documents. Mos. 1 and 2 were also identified and marked as material objects. Ext. D1 document was marked on the side of the defence. The trial court finally held that it is proved beyond doubt that the accused was keeping in her possession arrack as alleged and that the same was recovered from her immediate possession as abandoned by herself. Accordingly, the accused is found guilty for the offence u/s 8(2) of the Abkari Act and accordingly, she is convicted thereunder. On such conviction, she is sentenced to undergo simple imprisonment for one year and to pay fine of Rs. 1 lakh. In default, she is directed to undergo simple imprisonment for six months. Set off is allowed. Challenging the above conviction and sentence, the accused preferred the present appeal.
I have heard Sri. Philip. M. Varughese, Learned Counsel for the appellant and Smt. S. Hyma, learned Public Prosecutor for the State.
In order to prove the allegation against the accused, the prosecution mainly depends upon the evidence of PW 4, the detecting officer. When PW 4 was examined, he had stated that while he was working as S.I. of Police, Koodal Police Station and while he was on law and order duty on 20.5.2003, he had got information that the accused engaged in the sales of illicit arrack and consequently, himself and party proceeded to the spot. Thus, according to PW 4, at about 6.55 p.m. himself and party reached the road lying in front of the house of the accused, at that time she was seen running through the northern courtyard of the house carrying a can and a glass tumbler and she proceeded to the rubber estate situating on the north of the house. According to PW 4, when the team followed her, she abandoned the can and glass tumbler and ran away and escaped and they could not catch hold of the accused. According to PW 4, he picked up the can and glass tumbler and on examination of the contents of the can, he realised that it was arrack due to its odour and colour. According to him, he had drawn two samples, each measuring 180 ml. in bottles and the can with the remaining content and the sample bottles were sealed and affixed with labels containing signatures of the witnesses. According to him, he had drawn Ext. P1 mahazar prescribing the procedure adopted by him in drawing the sample and seizure of the contraband article. According to PW 4, thereafter, he went to the Police Station and prepared Ext. P2 F.I.R. and the contraband articles and samples are produced in the court as per Ext. P3 property list. He had also deposed that the accused was arrested at 8.30 p.m. on 10.7.2003 at the place called Anchumukku. Ext. P6 is the arrest memo and Ext. P7 is the inspection memo. Ext. P8 remand application is also proved through PW 4. According to PW 4, the samples were sent for chemical analysis on the basis of Ext. P5 forwarding note. Ext. P4 is the chemical analysis report so obtained, which would show the presence of ethyl alcohol in the two samples. Pws. 1 and 2 are the two independent witnesses, whose signatures are found place in Ext. P1 mahazar. PW 3 is the Police Constable, who accompanied PW 4 at the time of detection of the crime. These are the evidence referred to by the learned Judge and relied on in support of his finding to convict the accused.
Learned Counsel for the appellant vehemently submitted that the judgment of the trial court is factually and legally incorrect, especially when the prosecution has miserably failed to prove its case against the accused beyond reasonable doubt. The Learned Counsel for the appellant strenuously submitted that the identity of the accused is not proved properly and beyond reasonable doubt since the accused was not arrested from the spot with the contraband article. It is also submitted by the Learned Counsel that there is delay in producing the contraband article and samples before the court which is not properly explained. It is further pointed out that the evidence of PW 4 creates doubt, particularly with respect to the veracity of the case of the prosecution and the learned Judge of the trial court has miserably failed to consider those facts and went wrong in holding that the accused was found in possession of the contraband article.
On the other hand, the learned Public Prosecutor submitted that the evidence of PW 4 is intact and his evidence is corroborated by the evidence of Pws. 1 and 2, the independent witnesses as well as the official witness PW 3. Even though there is delay in producing the article, the same are properly explained by PW 3 and therefore, the accused is not prejudiced in any way. Thus, according to the learned Public Prosecutor, the trial court is fully justified in its finding and no interference is warranted.
I have carefully considered the arguments advanced by the Learned Counsel for the appellant and the learned Public Prosecutor. I have also gone through the impugned judgment and also the evidence and materials on record.
In the light of the rival contentions advanced and in the light of the evidence and materials on record, the question to be considered is whether the prosecution has succeeded in establishing the identity of the accused and her role in the commission of the offence and whether the trial court is justified in its finding and convicting the appellant.
The specific case of the prosecution is that when PW 4 and party were on law and order duty, PW 4 got information that the accused engaged in the sales of illicit arrack in her house and consequent to such information, PW 4 and party proceeded to the spot. It is the further case of PW 4 that when they approached the house of the accused, the accused was seen running towards the rubber estate situated near the northern side of the house of the accused. According to PW 4, the exact time was 6.55 p.m. It is the further claim of PW 4 that though the party followed the accused to book her, they failed in their attempt and as such, the accused could not be arrested from the spot. PW 4 has no case that he has got prior acquaintance with the accused, who is a lady. The time of the incident was 6.55 p.m. Even according to PW 4, Ext. P1 mahazar was prepared under the street light. No contraband article was seized from the physical possession of the accused. It is also pertinent to note that the prosecution has not produced any independent witness to identify the accused. PW4 in his evidence has not stated before the court that any independent witness from the locality was available and had seen the accused, who ran away from the spot. From the evidence of PW 4, it is crystal clear that Pws. 1 and 2, the attestors to Ext. P1 are seen present only at the time of preparation of Ext. P1. So, there is no evidence to show that it was the accused, who run away at 6.55 p.m. on the date of occurrence when PW 4 and party reached at the place of occurrence. In the absence of any clear evidence or prior acquaintance of PW 4 with the accused, it cannot be said that the prosecution has succeeded in proving the identity of the accused and her role in the commission of the offence or her link with the contraband article allegedly recovered by PW 4 as per Ext. P1 mahazar. So, the identification made by PW 4 in the court, after five years from the date of incident with whom PW 4 has no prior acquaintance, cannot be acted upon and no evidentiary value can be attached to such evidence of PW 4. So the prosecution has miserably failed to establish the identity of the accused beyond reasonable doubt and to prove that it was the accused, who ran away from the spot, when PW 4 reached at the place of occurrence.
More over, it is also relevant to note that though PW 4 has claimed that the contraband articles were seized on 20.5.2003, the same and samples were produced before the court only on 22.5.2003. It is true that PW 4 has given a lame excuse for the delay that he was on law and order duty. Though the delay was minor, according to me, in the light of the facts and circumstances involved in the case, it assumes much importance. Regarding the safe custody of the contraband article and samples, there is only a mere claim of PW 4, who stated that there were no circumstances for tampering. But, it is relevant to note that as per Ext. P1, the cap of MO1 was green in colour. The colour of the cap of MO1 produced before the court is red. During the chief examination itself, PW 4 has stated, the colour of the cap is black. But, to a leading question, he had positively deposed that the colour was green. The above facts itself are sufficient to show that there is every possibility of tampering of the contraband article and the materials especially when there was delay and there was no proper evidence regarding the safe custody of the samples. A learned Judge of this Court in the decision reported in Ravi v. State of Kerala, 2011 (3) KLT 353 has held that the prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of Chemical Examiner in a fool proof condition. Therefore, the facts and evidence involved in this case do not show that Ext. P3 chemical analysis report is not on the basis of samples which represented the contraband article allegedly involved in the present case. In the light of the above discussion and evidence and materials on record, I am of the view that the prosecution has miserably failed to prove the identity of the accused and her role in the commission of the offence in the present case and as such, the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. For that reasons, I am unable to sustain the conviction recorded by the learned Judge against the appellant. Thus, the accused is entitled to get the benefit of doubt and accordingly, extending such benefit, the conviction is set aside.
In the result, this appeal is allowed setting aside the judgment dated 2.5.2005 in S.C. No. 665 of 2004 on the file of the court of Additional District and Sessions Judge (ADHOC), Fast Track Court-II, Pathanamthitta and the appellant/accused is acquitted of all the charges levelled against her. The bail bond, if any, executed by the appellant is set aside and she is set at liberty.