Appeal under Section 374(2) Cr.P.C.
2. Aggrieved by the conviction of the appellant under Section 55(a) of the Abkari Act (in short 'the Act') and the sentence imposed, she has preferred this appeal.
3. Heard the learned counsel for the appellant and the learned Public Prosecutor.
4. Prosecution case, in short, is as follows :
On 05-05-2000, at about 5.30 p.m., the appellant was found possessing about 5 litres of illicit arrack in MO1 can and she was holding MO2 glass at the time of detection of the offence. The contraband article was found to be arrack on examination and she was arrested with the help of a woman police constable (WPC). Thereafter, the accused and the contraband articles were produced before the court. After investigation, a charge was filed. After complying with the formalities, learned Additional Sessions Judge tried the appellant after examining four witnesses on the prosecution side and two witnesses on the defence side. Exts.P1 to P3 are the documents relied on by the prosecution. MO's 1 and 2 are the material objects.
5. Learned counsel for the appellant submitted that the conviction of the appellant was without any legal basis. According to him, the court below erred in appreciating the oral evidence and ignore the glaring incongruities affecting the strength of the prosecution case.
6. PW1 is an independent witness cited to prove the detection of offence. He refused to support the prosecution case and he was declared hostile. He admitted his signature on Ext.P1 seizure mahazar. But the prosecution case is that he witnessed the arrest of the accused with the contraband articles. According to his testimony, the incident was at about 4.30 p.m. In the cross examination of PW1, the prosecution could elicit no reason to contend that he was falsely testified to undue the support of the accused.
7. PW2 is the woman police constable, who accompanied PW4 at the time of detection of the offence. According to her evidence, at about 4.30 p.m she was informed that she should accompany PW4 to make detect an offence. At about 5.10 p.m, a jeep came from Medical College Police Station and she was asked to get into it. Thereafter, PW's 2 and 4 went to the place of occurrence and found the appellant standing in a coconut garden with 5 litres can full of arrack in her hand. She was holding a tumbler also. Finding that she held arrack in her possession PW4 asked PW2 to arrest the appellant. She was taken to police station in a jeep. According to PW2, Ext.P1 was prepared from the place of detection. PW2 testified that at about 4.30 p.m., on the date of detection the person in general diary charge informed her that she should go to detect an offence along with PW4. Learned counsel for the appellant contended that the case of PW4, the detecting officer is that he got the information only after 5.00 p.m. According to the learned counsel, this incongruity in the testimonies of PW's 2 and 4 is fatal as the defence has a definite case that false case is foisted on the appellant. PW2 stated that she did not remember the lie of the property from where the offence was detected. Another important incongruity in the testimonies of PW's 2 and 4 is regarding the body search of the appellant. According to PW2, body search of the appellant was done from police station. Where as PW's 3 and 4 testified that body search of the appellant was conducted from the place of detection itself. Considering the fact that the accused is a lady, the version of PW2 would be more probable than that of PW's 3 and 4. Regarding taking the sample and sealing the contraband, PW2 testified no material information to support the prosecution case.
8. PW3 was a police constable, who accompanied PW4.
PW3 also spoke nothing about taking the sample from the place of detection.
9. PW4 is the detecting officer. He is the start witness for the prosecution. According to his chief examination, after completing the V.V.I.P duty on 05-05-2000, he got information about the illicit sale of arrack by the appellant at about 5.00 p.m. He took PW2 in the jeep and reached at the place at about 5.30 p.m and saw the accused with the contraband. According to PW4, Ext.P1 mahazar was prepared from the place of detection. The independent witness cited to prove Ext.P1would depose that he signed on a paper from the place and later a mahazar was made out of it. Although PW4 testified that the contraband article was produced before the court after detection. The records would show that it was produced only on 12-05-2000.
There is absolutely no evidence tendered by PW4 as to who was in custody of the contraband from 05-05-2000 to 12-05-2000. It is also interesting to note that PW4 has no case that he took samples from the place of detection to be send for chemical analysis. In the deposition, it is mentioned that he submitted a forwarding note requesting the learned Magistrate to send sample to the chemical lab for analysis. The only inference that can be drawn is that he must have requested the court to draw sample and send it for analysis. However, the fact remains that no officer attached to the court was examined to establish that sample was taken from court and it was send for analysis at the instance of the prosecution.
10. DW's 1 and 2 are cited by the defence to establish that she has been framed up in a false case.
11. On appreciation of entire evidence, I am of the view that the reasons stated by the court below for convicting the accused is not legally sustainable. It is settled law that the prosecution had a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the chemical examiner in a full proof condition. There is no material brought out in evidence to find that the contraband articles were kept under the safe custody for 7 days before it was produced before the court. Learned counsel for the appellant places reliance on a Division Bench decision of this Court in Ravi v. State of Kerala and Another (2011(3)
K.L.T 353), wherein the term 'forthwith' occurring in Section 102(3) Cr.P.C was interpreted. The law laid down is as follows :
“ There is no statutory mandate under the above provision to “forthwith” produce the properties before the Court. What is insisted on is that the seizure of the property should be forthwith reported to the Court. But that does not mean that the detecting or Investigating Officer can produce the property leisurely, particularly when the nature and contents of the property can be convincingly established only through expert opinion obtained either in the form of chemical analysis or the report of a forensic or other expert for which the property should reach the court without unreasonable delay. Delayed production before court of the seized property (wherever it is practicable) is likely to be frowned upon by Courts because of the possible misuse or tampering with of such property while in the custody of the officer concerned. There is also the chance of such property getting misplaced. Under sub-s.(3) of S.40 it is provided that every person arrested and every article seized shall be forwarded without unnecessary delay to the officer in charge of the nearest Police Station or to the officer empowered under S.5A of the Abkari Act or to the Abkari Inspector. Here also there is no statutory mandate to “produce” the property before the Court “forthwith”. But the very fact that the statute insists on production of the property before an officer of a particular designation or rank is to ensure that there is no misuse of the property. Likewise, unless the property is before Court, there cannot be a proper ascertainment of the nature and content of the property by requestioning the service of an expert through the instrumentality of the Court. Hence, production of the property before Court without unreasonable delay is also a necessary requirement of law. Delay in producing the property before Court, by itself, cannot be fatal to the prosecution if the delay can be satisfactorily explained. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate “forthwith” either by virtue of S.103(2) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property. ”
12. In paragraph 13, the point decided is the following :
“ 13. It is difficult for us to believe that PW4 had produced the properties on 25.08.1997 and the Thondy Section Clerk refused to receive the properties on the ground that he was too busy. Even assuming that such a thing happened, we would have expected the prosecution to examine the Thondy Section Clerk to substantiate the above explanation. For reasons best known to the prosecution the Thondy Section Clerk was not examined. If so, it cannot be assumed that the property was in the safe custody of PW4 until their production before Court after 16 days. There is the possibility that the properties would have been tampered with. The prosecution, in a case of this nature can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition. (Vide State of Rajasthan v. Daulath Ram (AIR 1980 SC 1314) and Valsala v. State of Kerala (1993 (2) KLT 550 (SC). No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused (See Sathi v. State of Kerala (2007 (1) KLT SN 57 (C.No.82) and Sasidharan v. State of Kerala (2007 (1) KLT 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW4. Hence, the result of Ext.P7 Chemical Analysis cannot be applied against the appellant.”
13. In the absence of any material on which reliance can be placed to find that the contraband allegedly recovered from the possession of the appellant reached the court and thereafter the chemical examiner's lab, I find that the conviction of the appellant under Section 55(a) of the Abkari Act is legally unsustainable. Therefore, the accused/appellant is entitled to be acquitted in this case.
In the result, the appeal is allowed. Conviction of the appellant under Section 55(a) of the Abkari Act awarded by the court below is set aside. The appellant shall be set free forthwith, if not wanted in any other case. Her bail bond shall stand cancelled. If the appellant had deposed any amount for getting suspension of the sentence, it shall be refunded to her.
All pending interlocutory applications will stand dismissed.
Sd/- A.HARIPRASAD, JUDGE.
//True copy// amk P.A to Judge