A.Krishnan v. Excise Inspector, Kasaragod Excise Range & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY, THE 2ND DAY OF APRIL 2014/12TH CHAITHRA, 1936** **CRL.A.No. 159 of 2004 (A)** **--------------------------** **AGAINST THE JUDGMENT IN SC 671/2000 of ADDL.SESSIONS COURT (ADHOC-II)KASARAGODE DATED 16-01-2004.** **APPELLANT(S)/ACCUSED:** **--------------------** **A.KRISHNAN, S/O AMBADY, KASARGOD KASABA BEACH, KASARGOD.** **BY ADV. SRI.T.G.RAJENDRAN.** ## **RESPONDENT(S)/COMPLAINANT AND STATE:** **------------------------------------** **1. EXCISE INSPECTOR, KASARGOD EXCISE RANGE.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** ## **A.HARIPRASAD, J. -----------------------------------------------Crl. Appeal No.159 of 2004 -----------------------------------------------Dated this the 2[nd] day of April, 2014.** ## **J U D G M E N T** Appeal filed under Section 374(2) Cr.P.C. Challenge in this appeal is against the conviction of the appellant under Section 55(a) of the Abkari Act by the Additional Sessions Judge (Adhoc II), Kasaragod in S.C No.671/2000. 2. Prosecution case, in short, is as follows : On 23-06-1997, the appellant/accused was found in possession of 100 packets of Karnataka made arrack containing 100 ml each near Sri.Bhagavathy Tharavadu Devasthanam, Kasaba Beach in Kasaragod village. The accused was arrested by PW1 for contravening the provisions of the Abkari Act. After taking sample from the contraband and preparing the material documents evidencing search and seizure, the accused was produced before the Excise Office and then in the court on the next day. After completing the investigation, a charge was filed ## **Crl. Appeal No.159 of 2004 2** before the learned Magistrate. Learned Magistrate on finding that the offence is exclusively triable by a Court of Sessions, it was committed to the Sessions Court, Kasaragod and the case was made over to the learned Additional Sessions Judge. Learned trial judge after framing charge conducted the trial by examining three witnesses and marking seven documents on the side of the prosecution. MO's 1 and 2 were also marked. There is no defence evidence. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor. 4. Learned counsel for the appellant submitted that conviction of the appellant under Section 55(a) of the Abkari Act is not sustainable in law for the reason that the prosecution failed to establish the essential legal formalities. PW1 is the detecting officer. He was functioning as the Excise Circle Inspector. On 23-06-1999, at about 11.15 p.m in the night while ## **Crl. Appeal No.159 of 2004 3** he was on patrol duty, he found the appellant carrying a plastic sack on his head. He was trying to cross the road and on seeing the Excise jeep, he tried to escape. Immediately he was apprehended and on examination of the sack, it was found that he was possessing 100 packets of Karnataka made arrack, each packet containing 100 ml of liquor. The accused was arrested from the place of detection. PW1 prepared Ext.P1 arrest memo. Three packets were opened and he took about 290 ml of arrack in 375 ml bottle as sample. The bottle was properly sealed. Three empty bottles and 97 packets full of arrack were properly secured. PW1 testified that he affixed label with signature of himself, and that of the accused and the witnesses. Ext.P2 is the seizure mahazar prepared from the place of detection. After completing all the formalities, the accused and the contraband were removed to the Excise office. Crime and occurrence report is Ext.P3. The property and the accused were entrusted to PW2. ## **Crl. Appeal No.159 of 2004 4** In cross examination, PW1 adhered to the prosecution case. In spite of searching cross examination, no serious dent or discredit could be made so as to discard his testimony as unbelievable. 5. PW2 was the Excise Inspector, who conducted investigation in the case. He prepared Ext.P4 occurrence report and Ext.P5 property list. He is the person who prepared Ext.P6 forwarding note also. He conducted the investigation and laid the charge. He proved Ext.P7 chemical analysis report which shows that the contraband seized from the accused tested positive for ethyl alcohol. It is a definite case that the contraband articles along with the property list and the accused were produced before the learned Magistrate on 24-06-1999 itself. In cross examination also he adhered to his version that on 24-06-1999 the contraband was sent to the court as per Ext.P5 property list. On a perusal of Ext.P5, it can be seen that the contraband reached the court only on 30-06-1999. In other ## **Crl. Appeal No.159 of 2004 5** words, learned counsel for the appellant contended that the delay of six days in producing the contraband has not been explained by none of the witnesses on the side of the prosecution. PW2 emphatically stated that he sent the property on 24-06-1999. It is the case in cross examination that the contraband was sent through an Excise Guard. However, the endorsement made by the learned Magistrate that the property was produced only on 30-06-1999 cannot be brushed aside in the absence of any contra evidence to establish the prosecution case that it reached the court on 24-06-1999 itself. Learned counsel for the appellant would contend that non examination of the clerk in the court dealing with the properties or the Excise Guard through whom the property was sent to court as per the testimony of PW2 is fatal to the prosecution case. Reliance is placed by the learned counsel for the accused in _**Ravi v. State of Kerala and Another (2011(3) K.L.T 353)**_ wherein, Division ## **Crl. Appeal No.159 of 2004 6** Bench of this court held that there must be satisfactory link evidence to show that the contraband reached the hands of Chemical analyst was the same thing that was recovered from the possession of the accused and the contraband reached the chemical laboratory without any possibility of tampering or improper meddling with by any person. In the absence of proper evidence to show that the property was kept in a tamper proof condition for six days before it reached the court, the law laid down in _**Ravi's**_ case (supra) is clearly violated. Therefore, I find that the prosecution has to suffer a set back for not proving the possession of the contraband for six days until it reached the court, even though the detection and investigation upto 24-06-1999 have been properly proved. The prosecution case falls down for the non explanation of delay in producing the sample in a tamper proof condition before the trial court. Hence, I find that the accused is entitled to get the benefit in this case. **Crl. Appeal No.159 of 2004 7** In the result, the appeal is allowed. Conviction of the appellant under Section 55(a) of the Abkari Act in S.C No.671/2000 on the file of the Additional Sessions Judge (Adhoc II), Kasaragod is hereby set aside. The appellant shall be set free forthwith, if not wanted in any other case. His bail bond shall stand cancelled. If any amount has been deposited by the appellant as a condition for securing bail, it shall be returned to him. All pending interlocutory applications will stand dismissed. amk **Sd/-** //True Copy// P.A to Judge **A.HARIPRASAD, JUDGE.**