Anil Kumar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 1ST DAY OF SEPTEMBER 2014/10TH BHADRA, 1936 CRL.A.No. 716 of 2004 (E) -----------------------------AGAINST THE JUDGMENT IN SC 31/2001 of ADDL. SESSIONS COURT (ADHOC-I), ALAPPUZHA, DATED 19-03-2004 --------- APPELLANT/ACCUSED: ------------------------- ANIL KUMAR, CHERUKULATHUVEEDU, ASRAMAM WARD, ARYAD THEKKU VILLAGE, AMBALAPUZHA ALAPUZHA. BY ADVS. SRI.JOHN BRITTO SRI.C.A.RAJEEV RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA REPRESENTING THE EXCISE INSPECTOR, ALAPPUZHA RANGE R1 BY PUBLIC PROSECUTOR SRI.SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.716 of 2004 -----------------------------------------------Dated this the 1[st] day of September, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Alappuzha, for the offence under Section 8 of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of 1 lakh and,₹ in default of payment of fine, to undergo rigorous imprisonment for six months. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW1, the Excise Inspector, Excise Enforcement and AntiNarcotic Special Squad, Alappuzha, and his party were on patrol near the Village Office, Aryad South in Aryad South Crl. Appeal No.716 of 2004 -2- Village at about 5.00 a.m. on 07-02-1999. While so, the appellant was seen carrying a plastic kit in his right hand. Seeing the excise party, the appellant stopped walking and stood there. Soon, the excise party reached him and examined the plastic kit carried by him. 30 rose polythene covers were found in it. PW1 opened one of the covers and examined the contents by tasting and smelling. Then he realised that the covers were containing arrack. Each cover was containing about 100 ml. of arrack. PW1 opened one more cover and the arrack contained in both the opened covers were collected in a 375 ml. bottle as sample. Then the sample bottle was sealed and labelled. All the 30 polythene covers including the empty two covers and the plastic kit were labelled. Since the appellant had committed an offence under the Abkari Act, he was arrested then and there by PW1. 28 polythene covers containing about 2.800 litres of arrack, two empty polythene covers and the sample bottle containing 200 ml. of arrack were seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. Crl. Appeal No.716 of 2004 -3- Thereafter, PW1 reached the Excise Range Office with the appellant, properties seized and the records and produced them there. PW3, Assistant Excise Inspector, Excise Range Office, Alappuzha, registered Crime No.12 of 1999 of that Range Office in respect of the occurrence. Ext.P2 is the Crime and Occurrence Report prepared by PW3. He had produced the appellant before the court along with the Remand Report. PW6, the Excise Inspector, Excise Range Office, Alappuzha, had conducted the investigation of the case. He had questioned the witnesses and recorded their statements. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court, Alappuzha. 4. The learned Magistrate committed the case to the Court of Session, Alappuzha, and, from there, it was made over to the Additional Assistant Sessions Court, Alappuzha. A charge was framed against the appellant alleging the offence under Section 8 of the Abkari Act. The appellant pleaded not guilty of the charge. Later, the case was made Crl. Appeal No.716 of 2004 -4- over to the Additional Sessions Court (Adhoc)-I, Alappuzha. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P3 and MOs.1 to 31 on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. He stated that he was innocent and he was falsely implicated in the case. DW1 was examined and Exts.D1 and D1(a) were marked on the side of the defence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8 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. The prosecution case is that the appellant was found in possession of arrack at about 5.00 a.m. on 07-02-1999 and he was arrested by PW1 then and there and the contraband was seized under Ext.P1 Seizure Mahazar in the presence of witnesses. PW1 is the Detecting Officer. PW2, an Excise Crl. Appeal No.716 of 2004 -5- Preventive Officer, accompanied PW1 at the time of detection of the offence. Their evidence supports the prosecution version of occurrence. The prosecution had cited PWs.4 and 5 as independent witnesses for proving the occurrence. Both of them did not support the prosecution case. They were declared hostile to the prosecution. Whether a conviction can be entered against the appellant for a serious offence under Section 8 of the Abkari Act relying on the testimony of PWs.1 and 2 is the question to be considered. 6. It is the case of the prosecution that PW1 had seized the contraband under Ext.P1 Seizure Mahazar. According to the prosecution, Ext.P1 is a contemporaneous document prepared by PW1 at the time of detecting the offence. Such a document is expected to reach the court without any delay. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** has held that it is not necessary to produce the articles seized under Section 34 of the Abkari Act before the Magistrate forthwith either by Crl. Appeal No.716 of 2004 -6- virtue of Section 102 (3) of Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the court. The best form of reporting the factum of seizure of the property to the court is the production of the Seizure Mahazar contemporaneously prepared at the time of the detection of the offence before the court forthwith. But, in this case, the Seizure Mahazar claimed to have been contemporaneously prepared by PW1 reached the court only on 17-07-2000, i.e., after an inordinate delay of about one and a half years. The prosecution has not offered any explanation at all for the delayed production of Ext.P1 Seizure Mahazar before the court. 7. One more aspect also has to be considered along with this. It is the prosecution case that the appellant was arrested by PW1 at the time of detection of the offence itself. PWs.1 and 2 deposed before the court that he was arrested after preparing an Arrest Memo. But, the factum of Crl. Appeal No.716 of 2004 -7- preparing an Arrest Memo does not find a place in Ext.P1 Seizure Mahazar. What was the reason for not mentioning such an important fact in the Seizure Mahazar? No answer is forthcoming. The Arrest Memo claimed to have been prepared by PW1 was not tendered in evidence. An Arrest Memo is available among the records. This document is seen reached the court only on 23-02-1999. A document like this is expected to reach the court without delay. Reaching the court such documents without delay gives credibility to the prosecution case because, the Arrest Memo is claimed to have been prepared at the time of detecting the offence. If there was any particular reason for the delayed production of such a document before the court, the prosecution could have explained the same before the court. That was not done in this case. No explanation is forthcoming for not producing the Arrest Memo before the court without delay or for not tendering that document in evidence. No Arrest Notice had been prepared in this case. An endorsement allegedly made by the brother of the appellant to the effect Crl. Appeal No.716 of 2004 -8- that he was informed of the arrest of the appellant appears on the Arrest Memo. When ? No date appears below such an endorsement. Was it actually endorsed by the brother of the appellant? These facts are not in evidence. What was the special reason for not preparing a separate Arrest Notice in writing? No answer is there. ## 8. This Court in **Ramankutty v. Excise Inspector** ## **(2013 (3) KHC 308)** has held as follows: “It is pertinent to note that the 'arrest memo', a crucial document which is required to be prepared contemporaneously at the time of arrest to show the genuineness of arrest, is seen not produced before the Trial Court. Prosecution has no case that though the arrest memo had been prepared at the time of the arrest and seizure, it could not be produced before the Trial Court. So it can be safely concluded that it was not prepared at the time of alleged arrest. It is the violation of one of the mandatory requirements of arrest to be followed in all cases of arrest, which is made mandatory by the Supreme Court in _D. K. Basu v. State of West Bengal_ . The specific case of the prosecution is that the Revision petitioner, while coming through a public road carrying a plastic can containing 2 litres of arrack in his hand, was arrested from a road and seized the said contraband by the Preventive Officer and party. Crl. Appeal No.716 of 2004 -9- Therefore, I am of the opinion that the arrest with the contraband in his hand is the basis of the prosecution case on which the entire case has been built up. If the arrest is not proved beyond reasonable doubt, the entire case set up by the prosecution will fall to ground. It is also pertinent to note that there is no evidence to show that one friend or relative or other person known to him was informed of the arrest of the Revision petitioner, immediately after the arrest in compliance with another mandatory requirement of arrest in the Supreme Court decision in _D. K. Basu's case_ . It is apposite to have a look at the said directions of the Supreme Court which read as follows: “That the Police Officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being Crl. Appeal No.716 of 2004 -10- informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.” The prosecution has no case that they have complied the said directions. I am of the opinion that the non-compliance of the mandatory requirements to be complied at the time of arrest speaks volumes doubting the genuineness of the arrest and it is fatal to prosecution case, as the seizure of the contraband has no existence at all without proving the factum or arrest, beyond reasonable doubt.” In the case on hand, the unexplained delay occurred in producing Ext.P1 Seizure Mahazar and Arrest Memo before the court and the non-preparation of an Arrest Notice render the prosecution case a doubtful one. The accused, at least, is entitled to the benefit of doubt on this ground alone. 9. The List of Property with which the properties were produced before the court was not marked in this case. A List of Property is seen among the records. It is not dated. It is seen reached the court on 08-02-1999. The Excise Crl. Appeal No.716 of 2004 -11- Inspector, Alappuzha Range, is seen signed in this document. Such an officer was not cited as a witness or examined in this case. PW3 stated that he had not produced the properties before the court. It is his case that he was holding the charge of the Excise Range Office, Alappuzha, on 07-02-1999. PW6, the Investigating Officer, stated that he did not know who was the Excise Inspector of the Excise Range Office, Alappuzha, in February, 1999. The officer who claimed to have held the office of the Excise Range, Alappuzha, deposed that he had nothing to do with that List of Property. The Investigating Officer does not know who was the Excise Inspector at the relevant time. No Excise Inspector, signed in the List of Property had been cited or examined. Under whose custody the properties were remaining till they were produced before the court on 08-02-1999. Were them with PW3 or somebody else? It can be seen from the List of Property that all the properties were returned from the court by the order of the court on 08-02-1999 for safe custody by the Excise Inspector, Excise Crl. Appeal No.716 of 2004 -12- Range Office, Alappuzha, for want of sufficient space to keep them in the court. Thereafter, under whose custody those properties were remaining? No answer is forthcoming. At what point of time those properties again produced before the court? No answer is forthcoming. The properties so returned from the court include the sample collected at the time of detecting the offence. When that sample was produced before the court or sent it from the court to the Chemical Examiner's Laboratory? Was it accompanied by a Forwarding Note describing the sample and also affixed with the sample seal? It is not discernible whether such a Forwarding Note had been produced by the concerned excise official before the court. No copy of the Forwarding Note is available among the records. If a copy is available, it would have been helpful for ascertaining whether the Forwarding Note contained the sample impression of the seal affixed on the sample. It is stated in Ext.P1 Seizure Mahazar that the sample bottle was sealed. PWs.1 and 2 deposed before the court that the sample bottle was sealed. Crl. Appeal No.716 of 2004 -13- In the absence of Forwarding Note and in the absence of examination of the Property Clerk or other official who was dealing with the material objects in court, this Court is not in a position to arrive at a conclusion with regard to the presence or absence of the sample seal in the Forwarding Note. Ext.P3 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in the sample. It is also noted in Ext.P3 that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was so provided? None of the official witnesses examined in this case stated before the court that such a sample seal was provided for comparison to the Chemical Examiner. In view of these facts, no credibility can be given to the fact that the Chemical Examiner examined the sample of the contraband allegedly seized from the appellant by PW1. The link evidence showing that the sample of the seal affixed on the sample bottle reached the Chemical Examiner for his comparison is missing in this Crl. Appeal No.716 of 2004 -14- case. Therefore, there is no assurance that the Chemical Examiner really examined the sample drawn from the bulk allegedly seized from the appellant in this case. ## 10. 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 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.” This Court in **Ravi v. State of Kerala** (supra) has held that the prosecution can succeed only if it is shown that the Crl. Appeal No.716 of 2004 -15- 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, for these reasons, Ext.P3 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. ## 11. This Court in **Narayani v. Excise Inspector** ## **(2002 (3) KLT 725)** has held 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 13-09-1998 (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. ........” Crl. Appeal No.716 of 2004 -16- Therefore, in that case, the accused was found to be entitled to the benefit of doubt. In the case on hand also, for the reasons already stated, such a benefit is to be extended to the appellant. 12. PW3 deposed before the court that he had registered the case in respect of the occurrence and Ext.P2 was prepared by him. The signature appearing in Ext.P2 was that of him. A comparison of the signatures appearing in Ext.P2 and in the deposition of PW3 would go to show that the signature appearing in Ext.P2 cannot be accepted or believed to be the signature of PW3. However, this Court does not propose to elaborate on this matter any further. According to PW1, after the detection of the offence, he had reached the Excise Range Office, Alappuzha, with the appellant, properties and the records and produced them there. But, according to PW2, the appellant, properties and the records were produced after detecting the offence at the Excise Special Squad Office. This is a material contradiction. On analysing the evidence of PWs.2 and 3, it can be found Crl. Appeal No.716 of 2004 -17- that it is not free from discrepancies and omissions. 13. For the foregoing reasons, the conviction and sentence passed by the court below against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence under Section 8 of the Abkari Act. 14. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offence under Section 8 of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal No.716 of 2004 -18-