Anilkumar @ Kochumani s/o Ragavan Pillai v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY ,THE 05TH DAY OF NOVEMBER 2018 / 14TH KARTHIKA, 1940 ## CRL.A.No. 2018 of 2007 AGAINST THE ORDER/JUDGMENT IN SC 683/2002 of ADDL. DISTRICT COURT (ADHOC-I), KOLLAM DATED 11-10-2007 ## APPELLANT/SECOND ACCUSED: ANILKUMAR @ KOCHUMANI S/O. RAGHAVAN PILLAI, EDACKATTAM VEETIL VADAKKATHIL, NEAR VELIYILKULANGARA, THEKKEVILA CHERRY, KOLLAM. BY ADVS. SRI.B.BALRAJ SRI.K.SHAJ SRI.SAJJU.S ## RESPONDENT/S: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ## OTHER PRESENT: BY SMT. K.K. SHEEBA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.09.2018, THE COURT ON 05.11.2018 PASSED THE FOLLOWING: Crl. Appeal No. 2018/2007 : 2 : ## **JUDGMENT** The appellant is the second accused in S.C. No. 683 of 2002 on the file of the Additional District and Sessions Judge (Adhoc) Court-I, Kollam for offences punishable under Sections 8(1) and 8(2) of the Kerala Abkari Act. 2. The case of the prosecution is as follows: On 21.10.1999, at about 6 p.m., accused Nos. 1 and 2 were found in possession of 5 litres and one litre of arrack respectively at kariyilakavu Temple Compound, Thekkevila Cherry, Mundakkal Village. 3. On the side of prosecution, Pws 1 to 4 were examined and Exts.P1 to P7 and Mos 1 to 3 were marked. 4. The learned Sessions Judge, after trial, as per judgment dated 11.10.2007, found the appellant guilty of the offences and convicted and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to pay the fine, to undergo simple imprisonment for six months. Aggrieved by the same, he has approached this Court. 5. The learned counsel for the appellant contended that there was no independent witness examined on the side of prosecution to prove the seizure or sampling of the contraband articles which were alleged to have been seized from the appellant and that the court Crl. Appeal No. 2018/2007 : 3 : below ought to have given a chance to adduce defence evidence. 6. In fact, this case has been chargesheeted by the Kollam East Police Station in Crime No. 1021 of 1999 against two accused. The first accused was absconding and therefore, the trial was proceeded against the second accused, the appellant herein. The second accused was arrested on the spot along with the contraband articles and he was produced before the Judicial First Class Magistrate, Kollam. He was remanded to judicial custody and thereafter, he was released on bail as per order dated 14.01.2005 passed by the Additional District and Sessions Judge (Adhoc-I), Kollam in Crl.M.P No. 34 of 2005. 7. After the completion of the investigation, the charge was laid before the Judicial First Class Magistrate Court-II, Kollam on 24.01.2000. Thereafter, the case was committed to the Sessions Court, Kollam and the learned Sessions Judge has made over the case to the Court of Principal Asst. Sessions Judge, Kollam for trial and disposal. 8. The prosecution examined 5 witnesses. CWs1 and 2 are independent witnesses. CW2 died. The Thondy Clerk of the JFCMII, Kollam was examined as PW4. After the closure of prosecution evidence, the accused was questioned under Section 313 Cr.P.C and his statement was recorded. The case was posted for hearing under Crl. Appeal No. 2018/2007 : 4 : Section 232 Cr.P.C. Since no incriminating circumstances brought out to acquit the accused by invoking the power under Section 232 Cr.P.C, the case was posted for defence. No defence evidence was adduced on the side of accused. 9. PW2, the Additional Sub Inspector of Kollam East Police Station, detected the case on 21.10.1999 at 6 p.m. The place of occurrence is the temple compound of the Kariyila Kavu. He has deposed that while they were on patrol duty, they got reliable information that two persons were engaged in the sale of arrack and they proceeded to the place of occurrence and detected the offence at 6 p.m. The appellant was arrested from the place of occurrence along with the contraband articles and on questioning, he has revealed the name and address of the first accused and accordingly, his name was implicated in the case. The appellant was found in possession of the one litre of arrack in a bottle having capacity of 1 ½ litres. The cannas having capacity of 10 litres contained 5 litres of arrack. According to PW2, they have tasted, smelt and found that it was arrack. Then, he has taken sample of each item taking 200 ml in a bottle of 375 ml. each, sealed the sample bottle and residue, and affixed label in the sample bottles with signature of PW2, independent witnesses and the second accused. The sample taken from the cannas was marked as item Crl. Appeal No. 2018/2007 : 5 : No.1 and the the sample taken from the bottle was marked as item No.2. On search of the body of the appellant, Rs.40 was seized and those items were seized by Ext.P1 mahazar. According to PW2, he has intimated the facts of arrest to the relatives of the appellant. PW1 is the Police Constable, who accompanied PW2 at the time of detection. He has also given evidence in the light of the evidence adduced by PW2. They have also identified the material objects which were marked as Mos 1 to 3. On the strength of Ext.P1 mahazar, the crime was registered. PW2 has produced the property by Ext.P4 on 25.10.1999 and numbered as T 579/00 on the same date. Item No.5 is sample bottle No.1, a sealed labelled bottle containing 200 ml of arrack. Item No.6 is a sealed label bottle containing 200 ml of arrack and the same was marked as 2. Item Nos. 1 to 3 returned to the SHO, Kollam East to keep at the Station due to the lack of space until further orders and item Nos. 5 and 6 retained in court. Ext.P6 is the remand application and Ext.P7 is the Chemical Analysis Report proved by PW2. Ext.P7 would show that 24.31% of ethyl alcohol was detected in item No.1 and 25.32% of ethyl alcohol was detected in item No.2, and that two sealed bottles marked as 1 and 2 each containing 200 ml of a clear and colourless liquid alleged to be arrack involved in Cr. No. 1021 of 1999 of Kollam East Police Station received for chemical Crl. Appeal No. 2018/2007 : 6 : analysis on 10.11.1999 with reference to letter No.T 517/99 dated 09.11.1999. The seal on the bottles was in tact and found tallied with the sample seal provided before court as per seizure mahazar. PW3 is the Sub Inspector of Police, East Police Station, who investigated the crime, verified the records and submitted charge against the accused. PW4, the property clerk of JFCM-II, Kollam, has testified that the property in Cr. No. 1021 of 1999 received in court on 25.10.1999 and entered into the property register as T517/99. The sample was sent on 09.11.1999 and as per the property register, item No. 5 and 6 are samples. 10. There are only two witnesses who supported the prosecution case. PW2 is the Additional Sub Inspector and PW1 is the accompanying Constable. PW3 is the Sub Inspector of the Kollam East Police Station, who has investigated the case. 11. The main argument advanced by the learned counsel for the appellant was that the prosecution has failed to produce the forwarding note, and there was 5 days' delay in producing the contraband articles before the court. Ext.P1 mahazar has not been signed by the Detecting Officer as well as the witnesses and the specimen seal has not been produced. 12. I have heard the learned counsel for the appellant and the learned Public Prosecutor, apart from perusing the records. Crl. Appeal No. 2018/2007 : 7 : 13. The learned counsel for the appellant argued that the forwarding note has not been marked also. Unless and until the forwarding note is produced, it is difficult to come to the conclusion that the sample seal produced is in tally with the seal affixed on the sample bottle which was sent for chemical analysis. 14. The learned counsel for the appellant contended that a fair investigation has not been done in this case. In support of his contention, he has placed reliance on the decision in _**Mohan Lal v. State of Punjab**_ [2018 (3) KLT 852 (SC)], in which it is held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof. ## 15. In _**Majeedkutty v. The Excise Inspector, Kollam**_ _**Range**_ [2015(1) KHC 424], it is held that in the absence of providing sample seal of court for comparison with the seal on contraband, before Chemical Examiner, it cannot be said that the sample of contraband allegedly seized has reached the Chemical Examiner. ## 16. In _**Gopalan v. State of Kerala**_ [2016 KHC 541], it is Crl. Appeal No. 2018/2007 : 8 : held that the effect of non-production of the forwarding note before the Court is fatal to the prosecution. In the absence of forwarding note made available before the court, it can be said that the prosecution was unable to establish the link evidence connecting the accused with the contraband article seized and the sample analysed in the laboratory and therefore, the accused is entitled to the benefit of doubt. ## 17. In _**Prakasan and another v. State of Kerala**_ [2016 KHC 96], it is held thus: “Further in the absence of specimen seal, impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the Chemical Examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in Court in the same condition in which it was seized and it reached the Chemical Examiner's Lab in a tamper proof condition and the Chemical Analysis Report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused.” 18. Moreover, there was gross delay in the production of the contraband article before court. The case was detected on 21.10.1999 and the contraband article was produced before court on 25.10.1999 and the sample was sent for chemical analysis on Crl. Appeal No. 2018/2007 : 9 : 09.11.1999. In the decision reported in _**Kumaran P. v. State of Kerala and another**_ [2016 (5) KHC 632], the Apex Court has held that the sample which was taken from the spot has to be produced before court in time and if there is delay, the prosecution has to explain what prevented them from producing the sample before court. In the absence of the explanation by the prosecution, it is difficult to find that the contraband articles alleged to have seized form the possession of the accused has reached the court in a tamper proof condition. Moreover, the forwarding note has not been marked and no sample seal provided. In the light of the decision in _Mohan Lal_ , no fair investigation has been done in the case which is the very foundation of the fair trial. 19. For the above reasons, I find that a fair investigation has not been done in this case and the appellant is entitled to get acquittal. In the result, this appeal is allowed and the order of conviction and sentence passed by the learned Additional District & Sessions Judge (Adhoc) Court-I, Kollam is hereby set aside. The appellant is set at liberty forthwith. The bail bond, if any, executed shall stand cancelled forthwith. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl. Appeal No. 2018/2007 : 10 :