V. RAMKUMAR & Ors. v. Daulath Ram- AIR 1980 SC 1314

V. RAMKUMAR, J.* * * * * * * * * * * * * * * * * *Crl.A. NO. 1549 of 2003 C* * * * * * * * * * * * * * * * * * Dated: 13-10-2009JUDGMENTIn this Appeal filed by the sole accused in S.C. 541/2001on the file of the Addl. Sessions court, (Fast Track Adhoc – II),Alappuzha , he challenges the conviction entered and thesentence passed against him by the said Court for an offencepunishable under Sec. 55 (a) of the Abkari Act . 2. The case of the prosecution can be summarised asfollows:-On 22-1-1998 at about 12.30 p.m. while P.W.1 (Nelson) the Excise Inspector of Mavelikkara Range was proceeding on patrolduty in the company of P.W. 2 (Saji) an Excise PreventiveOfficer, they came across the accused in front of N & C Bricksfactory on the Vettikkode road proceeding from Padayanivettath in Vallikkunnam Village. The accused wascarrying MO1 black jerry can of 10 litre capacity containingspirit . The accused was arrested.

Two samples each of 375 ml.were drawn fron the contents of the jerry can and given the Crl.A. NO. 1549 of 2003 C-:2:-markings A and B. The jerry can containing the balance quantityof 9.250 litres of spirit and the two sample bottles were allsealed and seized under Ext.P1 mahazar to which P.Ws 3 and 4(Gopalakrishnan Karanavar and Podiyan) affixed theirsignatures. During the course of investigation, PW5 (MinooVarghese) the Excise Inspector, Mavelikkara who succeededP.W.1 recorded the statements of witnesses and after completionof investigation charge sheeted the appellant.3. On the appellant pleading not guilty to the chargeframed against him by the court below for the offencepunishable under Sec. 55 (a) of the Abkari Act, the prosecutionwas permitted to adduce evidence in support its case. 4. The prosecution altogether examined 5 witnesses asP.Ws 1 to 5 of whom P.Ws 3 and 4 who are the independentwitnesses turned hostile to the prosecution and got markedthree documents as Exts.P1 to P3 and one material object asMO1.

5. After the close of the prosecution evidence, theappellant/accused was questioned under Sec. 313 (1) (b) Cr.P.C. Crl.A. NO. 1549 of 2003 C-:3:-with regard to the incriminating circumstances appearingagainst him in the evidence for the prosecution. He deniedthose circumstances and maintained his innocence. He had thefollowing to submit before Court:-“On the date of occurrence hewas working in the High TechEngineering Workshop. While so, the Excise Officials came in the jeep ofone Abkari Contractor and he wasarrested. He is innocent”.The appellant did not adduce any evidence when called upon toenter on his defence. 5. The learned Addl. Sessions Judge , after trial, as perjudgment dated 20-8-2003 found the appellant guilty of theoffence punishable under Sec. 55 (a) of the Abkari Act, andsentenced him to rigorous imprisonment for two years and topay fine of Rs. 1,00,000/- and on default to pay the fine, to sufferrigorous imprisonment for six months.

It is the said judgment Crl.A. NO. 1549 of 2003 C-:4:-which is assailed in this appeal.6.I heard the learned counsel appearing for theappellant and the learned Public Prosecutor. 7. After a careful re-appraisal of the oral anddocumentary evidence in the said case, I am not convinced thatthe prosecution has succeeded in establishing the case againstthe appellant beyond reasonable doubt. P.Ws 1 and 2 being thedetecting Officer and the Preventive Officer who accompaniedhim will naturally give evidence only in support of their case.P.Ws 3 and 4 who are the independent witnesses turned hostileto the prosecution. They categorically denied their signaturesin Ext.P1 mahazar allegedly prepared by P.W.1 from the spot ofdetection itself. The testimony of P.W. 3 is as follows:-“His signature was taken on a white paper. Signaturepurportedly shown in Ext.P1 mahazar is not hissignature. He is residing to the east of the N & CBricks factory.

There is a serpent's grove to thesouth western portion of his property . MO1 can wasactually taken from the said point. One Suresh who isthe driver of an abkari contractor by name Muraliwho owns a jeep bearing KL-4E 4784 had Crl.A. NO. 1549 of 2003 C-:5:-accompanied the excise party. While taking MO1jerry can from the serpant's grove the accused wasnot present. The officials after taking samples got thesignature of himself and others on a white paper andthey went southwards. He also accompanied themalong with several other people. The jeep wasstopped in front of High Tech workshop at Padayanivattom junction. He followed the exciseparty on his bicycle . Driver Suresh caught hold ofthe accused from the workshop and handed over himto the Excise Officials” . P.W.4 the other attester to Ext.P4 seizure mahazar alsofollowed suit. He also denied his signature in Ext.P1 mahazarand testified in terms of the deposition of P.W.3.

According toP.Ws 1 and 2 , 2 samples each of 375 ml. drawn from the bulkquantity in the jerry can and the sample bottles were given themarking A and B. The property list (thondi list) as per whichthe properties were produced before the J.F.C.M., Kayamkulamwas not marked. But the property list which is found in thelower court records shows that a black jerry can having acapacity of 10 litres having 9.250 litres of spirit and a sample Crl.A. NO. 1549 of 2003 C-:6:-bottle having the marking “A” and having a capacity of 375 ml.alone were produced before the Magistrate at Kayamkulam on22-1-1998. The second sample allegedly drawn by P.W.1 andwhich was allegedly given the marking “B” was not producedbefore the Magistrate. The aforesaid thondi list does not carrythe seal of the Magistrate's Court. No doubt, there is anendorsement presumably by the court staff that as there is nosufficient space in the thondi room to keep the thondi articles, orders may be passed with regard to item No.

1 namely the10 litre jerry can. There is also a writing below the aforesaidendorsement for keeping item No. I in the Excise Range Office. But apart from the fact that the said writing also does notcontain the seal or signature of the Magistrate, the thondisection clerk who is the custodian of the properties in the Magistrate's Court was also not examined to prove thoseendorsements. 8. The only three documents produced and marked bythe prosecution are Ext. P1 seizure mahazar, Ext.P2occurrence report and Ext.P3 report of the Chemical analysts. Crl.A. NO. 1549 of 2003 C-:7:-No forwarding note was got marked to indicate a request bythe investigating officer to sent the sample to the ChemicalExaminer's Laboratory for analysis. P.W.5 who is the ExciseOfficer who conducted the investigation has no case that he hadfiled any forwarding note or requisition for sending the samplesto the chemical examiner. P.Ws 1 and 2 also do not deposethat any request was made to the Magistrate to send thesample bottle for chemical analysis.

It is not explained as towhat was the reason which prompted the Magistrate to sentsample marked “A” to the Chemical Examiner's Laboratory, Thiruvananthapuram on 30-3-1998 as revealed by Ext.P3certificate. As already mentioned, out of the two samples thesample bottle on which the marking B was given was notproduced before the Court and no explanation has beenforthcoming as to what happened to the said sample. No doubt, the result of analysis found in Ext.P3 certificate is to the effectthat the sample contained spirit having 76.1 percent by volumeof Ethyl Alcohol. But when there is no acceptable evidence toshow that it was one of the two samples which was allegedly Crl.A. NO. 1549 of 2003 C-:8:-drawn from the jerry can allegedly held by the accused on 22-1-1998, that eventually found its way into the hands of thechemical examiner on 31-3-1998, it cannot be held that it wasthe sample which was subjected to chemical analysis in thechemical Examiner's Laboratory, Thrivuananthapuram is thevery same sample. [See in this connection State of Rajasthan v.

Daulath Ram- AIR 1980 SC 1314 ,Sasidharan v. State of Kerala – 2007 (1) KLT 720 and Valsala v. State of Kerala - 1993 (2) KLT 550 (SC)] . 9. Apart from the fact that the case of the accused asprobabilised by the testimony of P.Ws 3 and 4 could be true, areading of the record of examination of the accused under Sec.313 (1) (b) Cr.P.C. shows that the questions put to the accusedwere not framed in an easily understandable manner and werelengthy and complicated questions rolling up several distinctmatters of evidence in a single question. Such a questioning ofthe accused during examination under Sec. 313 (1)(b) Cr.P.C.was deprecated by a Division Bench of this Court in State of Kerala v. Aboobacker - 2006 (4) KLD 450 = 2006 (4) KLT Crl.A. NO. 1549 of 2003 C-:9:-SN. 49 Page No. 33 = 2006 (3) KLJ 165. A perusal of therecord of examination of the accused shows that altogether fourquestions alone were put to the accused and each question wasnot numbered and compound sentences were put to theaccused.

No question was put to the accused to the effect thatthe accused along with the properties and the seizuredocuments were taken to the Excise Range Office and fromthere to the Court of the Judicial Magistrate of the Fist Class, Kayamkulam. Likewise, except telling him that Ext.P3 is thecertificate of analysis after analysing the sample no question wasput to him as to whether any forwarding note had been filed incourt or that the sample was forwarded to the ChemicalExaminer's Laboratory from the J.F.C.M., Kayamkulam. Thecontents of Ext.P3 certificate was also not put to the accused. Itis well settled that each and every incriminatingcircumstances against the accused should be put to him duringthe examination under Sec. 313 (1) (b) Cr.P.C. and his attentioninvited to those circumstances and his explanation elicited onthose circumstances. Unless it is done, those circumstances Crl.A. NO. 1549 of 2003 C-:10:-cannot be relied on to enter a conviction against the accused.

In Sharad Birdhichand Sarda v. State of Maharashtra –AIR 1984 SC 1622 a three Judges' Bench of the Apex Courthas very succinctly laid down the law that circumstances notput to the accused during his examination under Sec. 313 (1)(b) Cr.P.C. cannot be used against him for recording aconviction. The said principle applies in all fours in this case .The defect in the examination of the accused in this case isincapable of correction by this Court since the accused has onlysuffered prejudice as a result of standing trial in a case inwhich two of the prosecution witnesses had already givenevidence in support of his case. The result of the foregoing discussion is that theprosecution has failed to bring home the guilt of the accusedbeyond reasonable doubt. The conviction entered and thesentence passed overlooking the above vital aspects cannot besupported and are accordingly dislodged. The appellant isfound not guilty of the offence punishable under Sec.