Aju s/o Joseph Kachappilly Veedu v. The Excise Inspector, North Paravur Excise Range (Crime No. 12/2005) and The State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 11TH DAY OF JANUARY 2016/21ST POUSHA, 1937 CRL.A.No. 2074 of 2007 --------------------------AGAINST THE JUDGMENT IN SC 169/2007 of ADDL.SESSIONS COURT (ADHOCIII), NORTH PARAVUR DATED 29-09-2007 -------- APPELLANT/ACCUSED: ------------------------- AJU S/O.JOSEPH KACHAPPILLY VEEDU, AISWARYA KAVALA DESOM, GOTHURUTHU CHENDAMANGALAM, PARAVUR. BY ADV. SMT.K.V.RESHMI RESPONDENT/COMPLAINANT/STATE: ----------------------------------------- ## 1. THE EXCISE INSPECTOR NORTH PARAVUR EXCISE RANGE, (CRIME NO. 12/2005) ## 2. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MS.LISHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.2074 of 2007 -----------------------------------------------Dated this the 11[th] day of January, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-III, North Paravur, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1 lakh and, in default of payment of₹ fine, to undergo rigorous imprisonment for three months. The appellant challenges the conviction and sentence so passed by the court below, in this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondents. 3. The prosecution case is briefly stated as follows: PW1, the Excise Inspector, Excise Enforcement and Anti Narcotic Special Squad, Ernakulam, and his party were on patrol at Gothuruth at about 12.30 p.m. on 11-04-2005. Crl. Appeal No.2074 of 2007 -2- While so, the appellant was seen coming from the opposite side carrying M.O.2 big shopper in his hand. Seeing the excise party, the appellant attempted to flee away. But, he was stopped there by the excise party and examined the big shopper when it was found that it contained M.O.1 ten litre white jerrycan. On examining the jerrycan, it was found that it contained five litres of arrack. Therefore, the appellant was arrested by PW1 preparing Ext.P1 Arrest Memo in the presence of witnesses. Ext.P2 is the Arrest Notice. PW1 has drawn 375 ml. of arrack as sample in a 375 ml. bottle from the bulk contained in the jerrycan. He has sealed the jerrycan containing arrack as well as the sample bottle and seized them under Ext.P4 Seizure Mahazar in the presence of witnesses. Thereafter, he has handed over the appellant, properties and the records to PW2, the Excise Inspector, Excise Range Office, North Paravur, at 2.00 p.m. on 11-04-2005 itself. PW2 registered Crime No.12 of 2005 of that Excise Range Office in respect of the occurrence. Ext.P5 is the Crime and Occurrence Report thus prepared by PW2. Crl. Appeal No.2074 of 2007 -3- PW2 produced the appellant, properties and the records before the Judicial First Class Magistrate's Court, North Paravur. Ext.P6 is the List of Property and Ext.P7 is a copy of the Forwarding Note. The investigation of the case was conducted by PW4, the Excise Inspector, Excise Range Office, North Paravur. He has gone to the place of occurrence and prepared Ext.P10 Scene Mahazar. He has questioned the witnesses and recorded their statements. Ext.P8 is the site plan of the place of occurrence prepared by PW3, the Village Assistant, Village Office, Chendamangalam. Ext.P9 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. PW4 completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Ernakulam, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-III, North Paravur. The court below framed a charge alleging the offence under Crl. Appeal No.2074 of 2007 -4- Section 8(1) and (2) of the Abkari Act against the appellant. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P10 and M.Os.1 and 2 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(1) and (2) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the prosecution case that the appellant was arrested with the contraband by PW1 at about 12.30 p.m. on 11-04-2005 and handed over the appellant, contraband and the records to PW2 at 2.00 p.m. on that day itself. PW2 claimed that the contraband with the sample were produced before the court on that day itself along with Ext.P6 List of Crl. Appeal No.2074 of 2007 -5- Property. Ext.P6 shows that it was received by the court only on 12-04-2005. So the claim of PW2 that the properties were produced before the court on 11-04-2005 itself is not supported by the endorsement made by the court on Ext.P6. Then, one question arises. Why the production of the properties was delayed. No explanation was forthcoming from any of the official witnesses with regard to the delay so occasioned. It is pertinent to note here a portion of the deposition made by PW2 in this regard. He has stated before the court that the properties with the List of Property were sent by him to the court on 11-04-2005 itself. He further stated that he did not know what happened to them thereafter. This statement made by PW2 raises different questions. Under whose custody the contraband including the sample was kept after it was sent by PW2 and before it reached the court on 12-04-2005? Whether it was under safe custody during that period? There is absolutely no answer. The prosecution has a duty to explain under whose custody the properties were kept before they were produced before Crl. Appeal No.2074 of 2007 -6- the court. In **Narayani v. Excise Inspector (2002 (3) KLT** **725)** a learned Single Judge of this Court observed as follows : - “.......... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out. ..........” Therefore, in that case, the accused was found to be entitled to the benefit of doubt. In the case on hand, the prosecution failed to adduce any evidence in order to substantiate the safe custody of the contraband including sample after PW2 parted with the same on 11-04-2005 and before it reached the court on 12-04-2005. There is also no evidence to show that as to whom they were entrusted by PW2 for producing before the court. Such a person was not questioned or examined in this case. Therefore, following the decision in **Narayani v. Excise Inspector** (supra), the appellant in this Crl. Appeal No.2074 of 2007 -7- case is also entitled to the benefit of doubt. 6. It is the prosecution case that after detecting the offence, PW2 has taken sample of the contraband and sealed the sample as well as M.O.1 jerrycan. It is stated in Ext.P4 Seizure Mahazar that PW2 has affixed his personal seal on the sample and the jerrycan. Three samples of his personal seal were affixed on a paper and produced that paper before the court which was marked as Ext.P3. It is stated in Ext.P6 List of Property that the jerrycan containing bulk of arrack and the sample bottle were sealed. It is the prosecution case that the sample was produced along with a Forwarding Note for the purpose of chemical analysis ensuring the fact that the sample collected by PW1 at the time of detection of the offence is in fact analysed at the Chemical Examiner's Laboratory. Ext.P7 is the copy of the Forwarding Note thus produced before the court. A copy of the Forwarding Note thus produced and marked in court is for serving a particular purpose. The copy of the Forwarding Note thus produced by the investigating agency before the Crl. Appeal No.2074 of 2007 -8- court should contain all the matters entered in the Forwarding Note. Here, in Ext.P7, a specific column is provided for affixing the specimen seal. No such impression of the seal is affixed in the space so provided for. Therefore, it cannot be accepted that the original of the Forwarding Note contained such a specimen seal. The clerk who was dealing with the properties in the court was not examined in this case. If the specimen seal was actually affixed in the original of the Forwarding Note, that fact could have been brought to light by examining the clerk who was dealing with the properties in the court. No such person was examined in this case. No official witness examined in this case deposed before the court that the original of the Forwarding Note contained the specimen seal claimed to have been affixed by PW1 on the sample. 7. Ext.P9 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. It is certified in this document that ethyl alcohol was detected in the sample. The sample of liquid contained 33.76% by Crl. Appeal No.2074 of 2007 -9- volume of ethyl alcohol. It is also certified that the seals on the packets were intact and found tallied with the sample seal provided. Whose sample seal was so provided? It can also be the seal of the court. When all these facts are considered, there is no assurance that the sample subjected to chemical analysis was really the sample of the contraband allegedly seized from the appellant. Such an assurance is possible only when the sample of the seal affixed on the sample bottle was provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the sample taken from the bulk allegedly seized from the appellant in this case. ## 8. This Court in **Rajamma v. State of Kerala (2014** ## **(1) KLT 506)** has held as follows : “..........The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been Crl. Appeal No.2074 of 2007 -10- provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** , has held that the prosecution 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 in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution 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. Therefore, no sanctity can be attached to Ext.P9 Crl. Appeal No.2074 of 2007 -11- Certificate of Chemical Analysis. For these reasons also, the appellant is entitled to the benefit of doubt. 9. It is the definite case of the defence that the occurrence alleged in this case has not taken place at all at the place where it alleged to have been taken place. It is stated in Ext.P4 Seizure Mahazar that the occurrence has taken place about 150 m. towards west from the Gothuruth bridge. Ext.P10 Scene Mahazar was prepared by PW4, the Investigating Officer. According to the statement made in this document, the place of occurrence is about 400 metres away from Gothuruth bridge. This vast difference regarding the distance from Gothuruth bridge to the place of occurrence noted by PW1, the Detecting Officer, and PW4, the Investigating Officer, cannot be ignored. This, in fact tells upon the veracity of the prosecution version in regard to the place of occurrence in this case. 10. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. The appellant is entitled to an order of acquittal of the Crl. Appeal No.2074 of 2007 -12- offence alleged against him. 11. In the result, the conviction and sentence passed against the appellant by the court below are set aside. The appellant is acquitted of the offence under Section 8(1) and (2) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **JUDGE** **BABU MATHEW P. JOSEPH** kns/- //TRUE COPY// P.A. TO JUDGE