Kerala High Court
Manikandan vs State Of Kerala on 21 February, 2025
Criminal Appeal No.24 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 20TH DAY OF FEBRUARY 2025 / 1ST PHALGUNA, 1946
CRL.A NO. 24 OF 2014
AGAINST THE JUDGMENT DATED 04.09.2013 IN SC NO.536 OF
2010 ON THE FILE OF THE COURT OF SESSION, PALAKKAD.
APPELLANT/ACCUSED:
MANIKANDAN,
S/O. AMMASAKOUNDAR, NEAR UP SCHOOL, ERUTHEMPATHY,
KOZHINJAMPARA, PALAKKAD.
BY ADV SRI.JACOB SEBASTIAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
REPRESENTING THE CIRCLE INSPECTOR OF POLICE,
WALAYAR POLICE STATION IN CRIME NO.15/2009.
BY ADV.
SRI.VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
18.02.2025, THE COURT ON 21.02.2025 DELIVERED THE FOLLOWING:
Criminal Appeal No.24 of 2014
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C.S.SUDHA, J.
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Criminal Appeal No.24 of 2014
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Dated this the 21st day of February 2024
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellant, the sole accused in S.C.No.536 of 2010 on the file of the
Court of Session, Palakkad challenges conviction entered and
sentence passed against him for the offence punishable under Section
55(a) of the Kerala Abkari Act, 1 of 1077 (the Act).
2. The prosecution case is that on 07/01/2001 at 18:05
hours the accused was found transporting 15 cans of 35 litre capacity
containing spirit worth ₹1,05,000/- in KL-2R-7424 Maruthi Zen
displaying a false registration number, that is, KL-07/AD/1421. The
15 cans contained total of 525 litres of spirit. Hence, the accused as
per the final report is alleged to have committed the offence
punishable under the aforementioned Section.
3. Crime no.15/2009, Walayar police station, that is, Ext.P3
FIR, was registered by PW1, the then Sub Inspector of Police, who
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was the detecting officer. PW6, Circle Inspector, Palakkad South
conducted the initial investigation and thereafter the investigation
was taken over by PW4, who on completion of the investigation
submitted the final report before the jurisdictional magistrate alleging
the commission of the offence punishable under the aforementioned
Section.
4. On appearance of the accused, the jurisdictional
magistrate after complying with all the necessary formalities
contemplated under Section 209 Cr.P.C., committed the case to the
Court of Session, Palakkad. The case was taken on file as
S.C.No.536/2010 and thereafter made over to the Additional Sessions
Judge-V, Palakkad, for trial and disposal. When the accused
appeared before the trial court, a charge under Section 55(a) of the
Act was framed, read over and explained to the accused to which he
pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW7 were
examined and Exts.P1 to P10 were marked in support of the case.
After the close of the prosecution evidence, the accused was
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questioned under Section 313(1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against him in the evidence of
the prosecution. The accused denied all those circumstances and
maintained his innocence.
6. As the trial court did not find it a fit case to acquit
the accused under Section 232 Cr.P.C., he was asked to enter on his
defence and adduce evidence in support thereof. No oral or
documentary evidence was adduced by the accused.
7. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the impugned
judgment found the accused guilty of the offence punishable under
Section 55(a) of the Act and hence sentenced him to rigorous
imprisonment for two years and to a fine of ₹1,00,000/- and in
default to rigorous imprisonment for a period of one year.
Aggrieved, the accused has come up in appeal.
8. The only point that arises for consideration in this
appeal is whether the conviction entered and sentence passed against
the accused/appellant by the trial court are sustainable or not.
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9. Heard both sides.
10. I make a brief reference to the materials relied on
by the prosecution in support of the case. PW1, the then Sub
Inspector, Walayar Police Station, deposed that on 07/01/2009 while
he was engaged in highway patrol duty and conducting search of the
vehicles passing through the National Highway in front of Walayar
Police Station, by about 6:05 p.m. a Maruthi Car bearing registration
no. KL-07/AD/1421 was seen coming towards Palakkad. Though he
signalled the vehicle to be stopped, driver of the vehicle did not stop
and so he along with his team chased the car and at the place called
Attappallam, intercepted the car. The accused was the driver of the
car. On searching the car, 15 white cans of 35 litre capacity with
spirit was found. The cans were seized and from the 15 cans, 3
samples were taken from each of the 15 cans in bottles having
capacity of 180ml each. Thus, 45 bottles of sample were taken from
the contraband seized. The sample bottles as well as the cans
containing the residue spirit were sealed, labelled, which labels
contain his signature as well as the signature of the witnesses. He
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arrested the accused as per Ext.P1 arrest memo. The contraband
articles were seized as per Ext.P2 mahazar. Thereafter, he registered
the crime, that is, Ext.P3 FIR. He produced the contraband articles
before the Court as per Ext.P4 property list.
10.1. PW2, Civil Police Officer, deposed that he was also
present along with PW1 when the search and seizure was effected.
He also supports the case of the prosecution.
10.2. PW6, Circle Inspector, Palakkad South, deposed
that he had conducted the initial investigation in the case. His
investigation revealed that the registration number, that is, KL-
07/AD/1421 that was exhibited in the car driven by the accused was
actually the registration number of an Enfield motorcycle.
10.3. PW5, admitted that he is an attestor to Ext.P2
seizure mahazar. However, he turned hostile and deposed that he had
neither seen the incident nor stated to the police that he had seen the
incident.
10.4. PW7 deposed that he had taken over the
investigation of the case on 21/01/2009 . His investigation revealed
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that the car that was driven by the accused was owned by one
Thangal Kunju and that the said car was involved in crime
no.280/2008 of Pooyampally police station, a theft case. He
submitted Ext.P7 forwarding note for sending the samples for
chemical examination. According to him, Ext.P8 was the inventory
prepared by CW12 on the basis of which JFCM-I, Palakkad prepared
Ext.P9 certificate. The chemical report in this case has been marked
as Ext.P10.
10.5. PW4 deposed that he had completed the
investigation and submitted the final report before the Court.
10.6. PW1, the Detecting Officer is alleged to have taken
3 samples from each of the 15 cans containing spirit alleged to have
been seized from the accused/appellant. Going by his testimony,
samples were taken in 45 bottles having a capacity of 180ml. Ext.P2
seizure mahazar which is alleged to have been prepared
contemporaneously does not say whether the sample bottles were
sealed or labelled. PW1 when examined deposed that he does not
remember what seal had been affixed on the bottles and cans. In
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Ext.P2 mahazar there is no reference to affixing of any seal or label.
PW1 does not seem to have a case that he had affixed any seal on the
sample bottles or on the cans containing the residue spirit. This Court
in Bhaskaran K. v. State of Kerala, 2020 KHC 5296 has held that
the nature of the seal used by the detecting officer shall be
mentioned in the seizure mahazar and the specimen of the seal shall
be produced in the court so as to enable the court to satisfy itself of
the genuineness of the sample produced in the court. In Rajamma v.
State of Kerala, 2014 (1) KLT 506, this Court has held that if the
specimen of the seal affixed on the bottle containing the sample is
not produced before the Court and forwarded to the chemical
examiner for verification to ensure that the sample seal so provided is
tallying with the seal affixed on the sample, no evidentiary value can
be attached to the chemical analysis report. In Ramachandran v.
State of Kerala, 2021 (1) KLT 793 while dealing with a case in
which forwarding note/requisition for sending the sample to the
laboratory was not produced and marked, it has been held that the
prosecution cannot establish the tamper-proof despatch of the sample
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to the laboratory as there was no satisfactory link evidence to show
that it was the same sample that was drawn from the contraband
seized that eventually reached the Chemical Examiner's laboratory.
Further, mere production of a laboratory report that the sample tested
was contraband substance cannot be conclusive proof by itself. The
sample seized and that tested have to be co-related. (See Vijay
Pandey v. State of Uttar Pradesh, AIR 2019 SC 3569).
11. Further Ext.P8 is stated to be the inventory
prepared by the Station House Officer, that is, the Circle Inspector of
Police, Palakkad Rural, which is seen countersigned by the Deputy
Commissioner of Excise, Palakkad. The officer who prepared Ext.P8
apparently does not seem to be the authorised officer as contemplated
under Section 67B of the Act. As per Section 67B, the officer seizing
and detaining the contraband shall without any unreasonable delay,
produce the same before an officer authorised by the Government in
this behalf by notification in the Gazette, not being below the rank of
an Assistant Excise Commissioner. Ext.P8 is seen prepared by the
Circle Inspector of Police, Palakkad Rural who was obviously not the
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authorised officer as per Section 67B of the Act. Further, Ext.P9 is
stated to be the certificate issued by the jurisdictional magistrate as
contemplated under Section 53A(2). The said certificate reads thus:
"PROCEEDINGS OF THE JUDICIAL FIRST CLASS MAGISTRATE, PALAKKAD
Present-...................., B.Sc.,LL.B.,
Judicial First Class Magistrate-Palakkad
Sub.:- Crl.Justice-Crime Nos.15/09, 169/09, 200/09 and 421/09 (4 nos) of Walayar Police
station disposal of spirit seized-certification of inventory orders issued-Reg.
Ref.:- Report dated 19-12-2009 of the Deputy Commissioner of Excise, Palakkad.
Order No.C-8864/09, 8865/09, 8866/09 of Judicial First Class Magistrate-I, Palakkad
dated 19-02-2010.
__________________________________________________________________
I have physically verified the properties involved in the following crime numbers of Walayar
Police Station, Palakkad which produced before this court on 19-2-2010 at 2-30 PM. The Junior
Superintendent and property clerk of this court assisted me in verifying the properties and I certify
that.
The following numbers of sealed and labelled white plastic cans are there against the
crime numbers noted below.
Sl.No. Crime Nos. No. of cans seized No. of cans found containing No. of empty
illicit spirit cans found
1. 15/09 15 15X35 Ltr Nil
2. 169/09 18 18X35 Ltr -
3. 200/09 24 24X32 Ltr -
4. 421/09 20 20X32 Ltr -
The cans and spirits handed over to the Deputy Commissioner of Excise,
Palakkad to conduct the steps for auction.
Sd/-
Judicial First Class Magistrate-1
Palakkad.
To
The Deputy Commissioner of Excise,
Palakkad.
Copy to:
The Sub Inspector of Police,
Walayar Police Station."
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This apparently is not in compliance with the provisions of Section
53A of the Act. In these circumstances, I find that the
accused/appellant is entitled to get the benefit of doubt.
In the result, the appeal is allowed and the conviction and
sentence imposed against the appellant by the trial court for the
offence punishable under Section 55(a) of the Act is set aside. The
accused is acquitted under Section 235(1) Cr.P.C. He is set at liberty
and his bail bond shall stand cancelled.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ak
