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2021 Supreme(Online)(KER) 25545
HIGH COURT OF KERALA
GOPINATH P, J
RAJAN,S/O.PURUSHOTHAMAN – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A/2080/2006
SRI.C.M.TOMY SRI.MATHEW SKARIA, PUBLIC PROSECUTOR
Prosecution must establish a clear chain of custody for seized contraband to uphold a conviction under Abkari offences.
Headnote:
Abkari - Offences - Sections 55(a), 8(2) - Court found failure to establish a link between seized contraband and its production in court, leading to acquittal.
Fact of the Case:
The accused were charged with carrying arrack in an autorickshaw. They were found guilty based on limited prosecution testimony and sentenced, but they contested the evidence linking them to the contraband.
Finding of the Court:
The court determined that the prosecution's failure to prove the chain of custody of the seized contraband was crucial to the case, leading to the appeal's success.
Issues: Whether the delay in producing the seized contraband and lack of chain of custody evidence undermined the prosecution's case.
Ratio Decidendi: The absence of examination of a critical witness, the Thondy Section Clerk, and failure to establish a direct connection of the contraband to the accused was fatal to the prosecution.
Final Decision: Appeal allowed; conviction and sentence set aside, accused acquitted.
JUDGMENT
This appeal has been filed by accused Nos.1 and 2 in S.C.No.226/2004 on the file of the Additional Sessions Judge (Adhoc-II), Thodupuzha in a prosecution for commission of offences under Sections 55 (a) and 8(2) of the Abkari Act .
2. The gist of the prosecution case is that the appellant/accused Nos.1 and 2 together with the 3rd accused were found carrying 30 litres of arrack in three cans in an autorickshaw through Valakodu-Upputhara public road, in Idukki District. Following investigation of the case, a final report was filed before the Judicial First Class Magistrate Court, Peerumedu. The case was made over to the Judicial First Class Magistrate Court, Kattappana as C.P.No.74/2002 from where it was committed to the Court of Sessions, Thodupuzha. The case was finally made over to the Additional Sessions Judge (Adhoc)-II, Thodupuzha for trial and disposal, where charges were framed against the accused. The accused entering a plea of not guilty, the prosecution led evidence and examined PWs 1 to 4, marked Exts.P1 to P10 documents and identified material object (MO1). On the closure of prosecution evidence, the accused were questioned under Section 313 Cr.P.C. when they denied all incriminating materials appearing against them and also gave totally different versions of the entire incident. However, no defence evidence was adduced.
On a consideration of the prosecution evidence, the trial Court found the appellants/accused Nos.1 and 2 guilty of offence under Sections 55 (a) and 8(2) of the Abkari Act and acquitted the 3rd accused, who was the autorickshaw driver. The appellants/accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for three years each together with a fine of Rs.1 lakh and in default of payment of fine, to undergo rigorous imprisonment for six months for the offence under Section 55 (a) of the . They were also sentenced to undergo rigorous imprisonment for three years and fine of Rs.1 lakh each and in default, to undergo rigorous imprisonment for six months each for the offence under Section 8 (2) of the .
3. Sri. C.M. Tomy, the learned counsel appearing for the appellants/accused Nos.1 and 2 would contend that the prosecution had failed to prove the case beyond of any reasonable doubt. The conviction was based on the sole testimony of PW4 and that all other prosecution witnesses had turned hostile. He submits that the appellants/accused Nos.1 and 2 were innocent passengers in the autorickshaw and they had nothing to do with the contraband. He also submits that there is a delay in producing the seized contraband before the Court and this is fatal to the prosecution case.
4. The learned Public Prosecutor submits that the testimony of PW4 was sufficient to establish the guilt of accused Nos.1 and 2. He would submit that the appellants/accused Nos.1 and 2 did not lead evidence to prove their case in any manner. He submits that on the contraband being recovered from the possession of accused Nos.1 and 2, the statutory presumption under Section
64 of the Abkari Act will also apply.
5. Before considering any other point, it will be worthwhile to consider the question as to whether the delay in producing the contraband article before the Court is fatal to the prosecution case, for the reason that if this point is found in favour of the appellants/accused Nos. 1 and 2, then the other issues do not arise for consideration. A reading of paragraph 12 of the impugned judgment shows that the incident occurred on 13.2.2001. The properties were produced before the Court only on 19.2.2001 after delay of six day. PW4 has deposed that he produced the properties before the Court on 14.2.2001 itself through a Police Constable, who produced accused Nos.1 and 2 before the Court. He has given evidence to the effect that the contraband article was not received by the 'Thondy' Section Clerk' of the Judicial First Class Magistrate Court, Peerumedu and were returned and further that the articles were thereafter in
