Madras High Court
Agastin vs State By The Inspector Of Police on 9 April, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.No.739 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.04.2025
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.No.739 of 2016 and
Crl.M.P.No.11124 of 2016
Agastin ... Appellant
Vs.
State by the Inspector of Police,
Prohibition and Enforcement Police Station,
Adyar, Chennai.
(Crime No.319/2012). ... Respondent
PRAYER: Criminal Appeal is filed under Section 374(2) of Criminal
Procedure Code, to call for the entire records in connection with
S.C.No.96 of 2016 on the file of the learned 17th Additional Sessions
Judge, Chennai-1 and set aside the conviction and sentence imposed by
the 17the Additional Sessions Judge, Chennai-1 dated 30.08.2016 in
S.C.No.96/2016.
For Appellant : Mr.T.Gowthaman, Senior Counsel for
Mr.S.Karpagapriya
For Respondent : Mr.L.Baskaran,
Government Advocate (Crl. Side)
JUDGMENT
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The appellant/A2 was convicted by judgment, dated 30.08.2016 in
SC.No.96 of 2016 by the learned XVII Additional Sessions Judge,
Chennai (Trial Court) for offence under Section 4(1)(aaa) of Tamil Nadu
Prohibition Act, 1937 and sentenced to undergo four months Rigorous
Imprisonment and to pay a fine of Rs.8,000/- in default to undergo
Simple Imprisonment for one month and for offence under Section 4(1-
A) of Tamil Nadu Prohibition Act, 1937 r/w Rules 6 & 7 of Rectified
Spirit Rules, 2000, the appellant/A2 was convicted and sentenced to
undergo three years Rigorous Imprisonment and to pay a fine of
Rs.7,000/-, in default to undergo one month Simple Imprisonment. Both
the sentences ordered to run concurrently. Challenging the judgment of
conviction, the present criminal appeal is filed.
2.The case of the prosecution is that on 29.08.2012 at 06.00 p.m,
PW6/Investigating Officer along with PW1 & PW2/Special Sub
Inspectors and PW3/Grade-I Constable from the Prohibition Enforcement
Wing, Adyar were conducting road check in L.B.Road opposite to Aavin
Booth, at that time, A1/Nagaraj came in his two wheeler viz., Honda
Activa bearing Reg.No.TN-09-AA-0778. A1 was intercepted and his two
wheeler was checked, he was found in possession of 5 Nos. of 750 ml
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green magic brandy (MO6). On enquiry, A1 disclosed that he along with
the appellant/A2 were in illegal possession and sale of liquor bottles and
illicit arrack. A1 took the PEW team to Ennore, identified the appellant
who was standing in a petty shop near a church. When the appellant was
questioned, he led the team to No.4, 6/2, P.V.Kovil Street, 8th Lane,
Royapuram where 20 Nos. of 500 ml Kingfisher Tin Beer, 20 Nos. of 500
ml Fostors Tin Beer, 23 Nos. of 500 ml Kingfisher Draught Beer, 20 Nos.
of 275 ml of Backardi Breezer and 3 Nos. of 35 litre plastic cane
containing rectified spirit (MO1 to MO5), found. On opening the plastic
cane (MO5), pungent poisonous smell emanated, two samples of 500 ml
each from one plastic can drawn. Thereafter, the accused were brought to
the Prohibition Enforcement Wing, Adyar along with the liquor bottles,
FIR (Ex.P12) in Crime No.319 of 2012 registered, both the accused
arrested and their confession statements (Exs.P2 & P4) recorded.
3.Based on their confession statements (Exs.P2 & P4), the liquor
bottles seized, the samples taken sent for chemical analysis. PW4, the
Scientific Officer confirmed the samples contained Atropine a poisonous
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substance and gave report (Ex.P9). This report was shown to PW5, the
Doctor attached to Kilpauk Medical College and Hospital, Chennai who
gave opinion (Ex.P11) that consumption of rectified spirit mixed with
Atropine would cause bodily injury and death. On collecting the
evidence and materials, charge sheet filed before the learned IX
Metropolitan Magistrate, Saidapet, Chennai (Committal Court) and
assigned PRC.No.135 of 2015. On committal, the case transferred to the
file of the XVII Additional Sessions Court, Chennai (Trial Court) and
renumbered as SC.No.96 of 2016.
4.The Trial Court framed charges under Sections 4(1)(a), 4(1)(aaa)
and 4(1-A) of Tamil Nadu Prohibition Act, 1937 r/w 6 and 7 of Rectified
Spirit Rules, 2000 against A1 and also framed charges under Sections
4(1)(aaa) and 4(1-A) of Tamil Nadu Prohibition Act, 1937 r/w 6 & 7 of
Rectified Spirit Rules, 2000 against the appellant/A2. During trial, on the
side of the prosecution, six witnesses examined as PW1 to PW6, fourteen
documents marked as Exs.P1 to P14 and six Material Objects marked as
MO1 to MO6. On side of the defence, no witness examined and no
document marked. On conclusion of trial, the Trial Court convicted A1
for offence under Section 4(1)(a) of Tamil Nadu Prohibition Act, 1937
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and imposed a fine sentence of Rs.1,000/- in default to undergo one
month Simple Imprisonment and acquitted from other charges. As
regards the appellant/A2 is concerned, he was convicted as stated above.
5.The learned Senior Counsel appearing for the appellant submitted
that in this case, the informant and the Investigating Officer are same
person namely PW6, which is not proper. The Investigating Officer/PW6
to somehow foist a false case, conducted investigation, filed charge sheet
contrary to the true facts. In this case, it is projected that the Investigating
Officer/PW6 along with PW1 & PW2/Special Sub Inspectors and
PW3/Grade-I Constable conducted road check, at that time they
intercepted A1 coming in a two wheeler, from him 5 Nos. of 750ml
Green Magic Brandy bottles (MO6) seized. This had taken place at about
06.00 p.m on 29.08.2012. Thereafter, MO6 seized, seizure mahazar
(Ex.P1) prepared on the spot, PW1 and PW3 attested the seizure mahazar
(Ex.P1). It is projected that though the seizure mahazar (Ex.P1) prepared
in a public place, PW1 and PW3, part of the raiding team, signed the
seizure mahazar (Ex.P1) since the public refused to be a witness. In this
case, after the seizure, confession of A1 (Ex.P4) recorded, pursuant to the
confession of A1, the raiding team had gone to Ennore along with A1, A1
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identified the appellant, took the appellant into custody, thereafter the
appellant led the team to Royapuram from where MO1 to MO5 recovered
and seized through seizure mahazar (Ex.P3). The second seizure also
made without public witness, PW1 & PW3 are the witnesses to Ex.P3.
After the seizure, the confession (Ex.P2) of the appellant recorded. The
Police had gone Ennore at about 10.00 p.m and the seizure taken place
prior to the confession. Thereafter, the raiding team had come to the
Police Station, the Investigating Officer/PW6 registered FIR (Ex.P12) in
Crime No.319 of 2012 at about 04.00 a.m on 30.08.2012. But in the
information slip attached to the bottles, the crime number is recorded that
is even prior to registration of FIR (Ex.P12).
6.He further submitted that the Investigating Officer/PW6 admits
that though A1 arrested at about 06.10 p.m on 29.08.2012 at Adyar and
the appellant/A2 arrested at about 10.30 p.m on 29.08.2012 at Ennore, the
arrest memo and arrest card are common for both accused. Added to it,
in the arrest memo and arrest card, it is shown that A1 and appellant/A2
arrested on 29.08.2012 at about 06.00 p.m and the crime number
recorded. Though the arrest of A1 and the appellant/A2 took place at two
different places, but a common arrest card and arrest memo prepared.
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Further, in this case, Investigating Officer/PW6 confirmed that 3 Nos. of
35 litres plastic cans containing rectified spirit found, but he opened one
plastic can which emanated poisonous smell and he took two samples of
500ml each from one plastic can and sent for chemical analysis. What
happened to the other two plastic cans and whether it contained any
rectified spirit, not known. PW6 admits that in the information slip
attached to the liquor bottles, his signature and crime number available
and signature of the accused or witnesses not obtained.
7.The learned Senior Counsel further submitted that the specific
case of the appellant is that since he was involved earlier in Prohibition
Offence cases, for the purpose of detaining the appellant and the other
accused under Goondas Act, the present case foisted against them. It is
admitted that the appellant/A2 and A1 both detained under Goondas Act
and the same quashed by this Court.
8.He further submitted that in the confession statements (Exs.P2 &
P4) of the appellant/A2 and A1, the facts narrated gives a different
version that on 29.08.2012 morning, both the appellant/A2 and A1 came
from St.Thomas Mount carrying Pondicherry liquor bottles in a two
wheeler, while passing through Kasi Theatre, Ekatuthangal, they were
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intercepted by the Police, on seeing the Police, they dropped the liquor
bottles, fled from the scene and thereafter, in the evening and night on
29.08.2012, the present offence committed by the appellant, is highly
artificial. The present case registered only for the purpose of detaining
the appellant/A2 and A1 under Goondas Act, nothing more.
9.The Trial Court though admitted that the informant and the
Investigating Officer/PW6 in Crime No.319 of 2012 are same person, no
prejudice shown against PW6. The above facts would establish prejudice
the manner in which the Investigating Officer/PW6 conducted
investigation.
10.He further submitted that admittedly, except for the Police
witnesses PW1, PW2, PW3 & PW6, no public or private persons
examined. The Investigating Officer/PW6 admits the preparation of
common arrest card and arrest memo for appellant/A2 and A1 at about
06.00 p.m on 29.08.2012 despite the appellant was shown arrest only at
about 10.30 p.m on 29.08.2012. In the arrest card, the crime number is
available. Likewise in the information slip attached to the liquor bottles
and in the samples, the crime number is recorded but in this case the FIR
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(Ex.P12) registered only on the next day on 30.08.2012 at 04.00 a.m.
The Trial Court in the absence of any evidence or material on its own
gives an explanation that it is possible the Investigating Officer/PW6
might have noted the crime number before going for road check, which is
not proper. In view of the above, the judgment of the Court below is not
sustainable and, to be set aside.
11.The learned Government Advocate (Crl. Side) appearing for the
respondent Police filed counter and submitted that the Investigating
Officer/PW6 along with PW1, PW2/Special Sub Inspectors and
PW3/Grade-I Constable from the Prohibition Enforcement Wing, Adyar
conducted road check on 29.08.2012 at about 06.00 p.m, at that time, A1
came in his two wheeler viz., Honda Activa bearing Reg.No.TN-09-AA-
0778 transporting 5 Nos. of 750 ml Pondicherry Green Magic Brandy
bottles (MO6). On interrogation, A1 disclosed the fact that he and
appellant/A2 indulged in illegal transport and sale of Pondicherry liquor
bottles and rectified spirit. Thereafter, A1 took the raiding team to
Ennore, identified the appellant who led them to Royapuram where MO1
to MO5 recovered and seized. Finding that the rectified spirit mixed with
Atropine emanating poisonous smell (MO5), two samples of 500 ml from
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one plastic can taken. Since no public came forward to be a witness, in
presence of PW1 and PW3 the seizure mahazar (Ex.P1) prepared for
MO6 and seizure mahazar (Ex.P3) prepared for MO1 to MO5.
Thereafter, the seized liquor bottles along with the accused brought to the
Police Station, FIR (Ex.P12) registered against the accused, seized liquor
bottles sent to the Court through Form-95 (Ex.P13) and the samples taken
sent to chemical analysis. PW4, the Scientific Officer report (Ex.P9)
confirmed the presence of Atropine in the rectified spirit (MO5), a
poisonous substance. This report produced before the Doctor (PW5) who
gave opinion (Ex.P11) that the consuming rectified spirit mixed with
Atropine would cause physical impairment and can be fatal. On
collection of evidence and materials, PW6 filed charge sheet before the
committal Court, thereafter, the case transferred to the Court of Sessions.
During trial, PW1 to PW6 examined and Exs.P1 to P14 marked and MO1
to MO6 marked. The points raised by the appellant herein, already raised
before the Trial Court and the Trial Court found the grounds raised not
sustainable and convicted the appellant. Hence, he prays for dismissal of
the appeal confirming the conviction of the Trial Court.
12.This Court considered the rival submissions and perused the
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materials available on record.
13.The admitted position of the prosecution case is that on
29.08.2012 in the evening at 06.00 p.m, the Investigating Officer/PW6
along with PW1, PW2/Special Sub Inspectors, PW3/Grade-I Constable
conducted road check near L.B.Road opposite of Aavin Booth, Adyar, at
that time, A1 came in a two wheeler intercepted and found in possession
of 5 Nos. of 750 ml Pondicherry Green Magic Brandy bottles (MO6).
Thereafter, MO6 seized by seizure mahazar (Ex.P1), his confession
statement (Ex.P4) recorded. A1 disclosed about the appellant, led the
team to Ennore, identified the appellant. The appellant was questioned
who led them to Royapuram, from where, MO1 to MO5 found and seized
through the seizure mahazar (Ex.P3), thereafter his confession statement
(Ex.P2) recorded. The arrest, recovery of MO1 to MO6, confession
(Exs.P2 & P4) of A1 and appellant/A2 not made in presence of any
independent witness. Though an explanation was given that no public
came forward to be a witness, the same not recorded in any of the
contemporaneous document with details. Hence, the arrest, recovery of
MO1 to MO6 and confession statements (Exs.P2 & P4) of A1 and
appellant/A2, are highly doubtful. The absence of the independent
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witness casts doubt on the liquors seized and seizure mahazar (Exs.P1 &
P3). Added to it, the seizure of MO1 to MO6 precedes confession of A1
and appellant/A2 (Exs.P2 & P4).
14.As regards taking samples (MO5), it is seen that the samples of
the rectified spirit taken from the scene of occurrence in two bottles of
500 ml each, is from one plastic cane. The Raiding Team confirms that
only one plastic cane opened, poisonous smell emanated and with regard
to other two plastic cans, the same were not opened and no samples taken
from it. Thus, it remains unknown whether the other two cans contained
rectified spirit with Atropine. Added to it, no acceptable explanation was
given by the Investigating Officer/PW6 for not taking samples from the
other two plastic cans. Hence, there is a procedural lapse.
15.In this case, the Investigating Officer/PW6 admits the recording
of crime number in the documents prepared by him while preparing the
arrest memo, arrest card and in the information slip attached to the liquors
bottles and rectified spirit. He further admits that all these process took
place on 29.08.2012 at the place of arrest and seizure that is at Adyar and
Royapuram. Though A1 and appellant/A2 arrested at two different
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places, a common arrest memo dated 29.08.2012 at about 06.00 p.m is
recorded with crime number. The arrest of the appellant admittedly is
only at about 10.30 p.m on 29.08.2012 at Royapuram. There is no
signature obtained from the accused or independent witnesses in any of
the above documents. The admitted position is that the Investigating
Officer took both the accused and seized liquors to the Police Station on
30.08.2012 and registered FIR (Ex.P12) at about 04.00 a.m. But the Trial
Court on its own gives a reason that PW6 might have noted the crime
number before going to road cheque, is not proper in the absence of any
material. Admittedly, in this case, PW6 is the informant and the
Investigating Officer. The above facts confirms prejudice in the
investigation.
16.In the confession statements (Exs.P2 & P4) of A1 and
appellant/A2, it is recorded that on 29.08.2012 in the morning hours,
when A1 and appellant/A2 were coming in a two wheeler transporting
Pondicherry liquor bottles, they intercepted by the respondent Police near
Kasi Theatre, Ekatuthangal, on seeing the Police, they dropped the liquor
bottles, fled from the scene and subsequently involved in the present case.
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This confirms the manner in which the investigation conducted by PW6.
17.The arrest, recovery of MO1 to MO6 is prior to the confession
statements (Exs.P2 & P4), hence the recovery, seizure becomes highly
doubtful coupled with the fact no independent witness examined despite
the arrest, seizure and recovery made in a public place. Added to it, the
Investigating Officer failed to give any acceptable reason for not taking
samples from other two plastic cans (MO5). Whether the other two
plastic cans contained rectified spirit, is questionable. Likewise, before
registration of FIR, the crime number recorded in arrest memo, arrest
card, information slip attached to the liquor bottles and rectified spirit,
creates serious doubt on the prosecution case.
18.In view of the above, this Court finds the prosecution miserably
failed to prove the case beyond all reasonable doubt. Hence, the
conviction and sentence imposed by the Trial Court is liable to be set
aside.
19.In the result, the judgment dated 30.08.2016 in SC.No.96 of
2016 by the learned XVII Additional Sessions Judge, Chennai is set aside
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and the appellant is acquitted from all the charges levelled against him.
Bail bond if any executed shall stand cancelled. Fine amount if any paid
shall be refunded.
20.Accordingly, this criminal appeal is allowed. Consequently,
connected criminal miscellaneous petition is closed.
09.04.2025
Speaking Order/Non Speaking Order
Index : Yes/No
Neutral Citation: Yes/No
vv2
M.NIRMAL KUMAR, J.
vv2
To
1.The XVII Additional Sessions Judge,
Chennai.
2.The Inspector of Police,
Prohibition and Enforcement Police Station,
Adyar, Chennai.
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3.The Public Prosecutor,
Madras High Court.
09.04.2025
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