Arjunan s/o Raghavan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 22[ND] DAY OF SEPTEMBER 2021 / 31ST BHADRA, 1943 CRL.A NO. 2246 OF 2008** **AGAINST THE JUDGMENT IN SC 22/2006 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-I, KOLLAM** ## **APPELLANT/ACCUSED:** ARJUNAN S/O.RAGHAVAN, MADATHIL HOUSE,PULIYOORVANCHI, THEKKUMMURI, THODIYOOR VILLAGE, KARUNAGAPPALLY. BY ADV SRI.T.GOPALAKRISHNAN ## **RESPONDENT/RESPONDENT:** STATE OF KERLA REPRESENTED BY THE EXCISE INSPECTOR, KARUNAGAPPALLY,, THROUGH THE PUBLIC PPROSECUTOR, HIGH OURT OF KERALA ( CRIME NO. 172/2003 OF EXCISE RANGE, KARUNAGAPPALLY) BY ADV PUBLIC PROSECUTOR SRI ARAVIND V MATHEW THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.2246/2008 ## -:2:- J U D G M E N T Dated this the 22[nd] day of September, 2021 This is an appeal filed u/s 374(2) of Cr.P.C. against the judgment of conviction and sentence passed by the Additional District and Sessions Court, (Adhoc-1), Kollam in SC No.22/2006 dated 30/8/2008. 2. The accused/appellant faced trial for the offences punishable u/s 55(i) and 8(1) of the Abkari Act. The prosecution case in short is that on 3/9/2003 at 8.30 p.m, at the road on the eastern side of Karunagappally market, Sasthamcottah, Karunagappally road, accused was found keeping 1425 ml of Indian made foreign liquor in four bottles each having capacity of 375 ml in contravention of the Abkari Act and the Rules. 3. PW1, the Excise Inspector, Karunagappally and PW3, the Preventive Officer, while on patrol duty got reliable information that the accused was selling Indian made foreign Crl.Appeal No.2246/2008 -:3:- liquor near the culvert on the eastern side of Karunagappally market. Accordingly they reached the spot and the accused was intercepted and one bottle filled with Indian made foreign liquor was seized. A cycle was found near the accused and 3 bottles of 375 ml Indian made foreign liquor sealed with label Fighter XXX Rum were also found in a plastic cover on its carrier. On body search of the accused, currency note of `532/- was seized. The accused was arrested at the spot. Out of the liquid received from the accused, 200 ml was taken as sample in a bottle having capacity of 375 ml. It was sealed and packed in the presence of the witnesses. Ext.P1 seizure mahazar was prepared. PW1 took the accused and the contraband articles seized to the range office and registered the crime. Ext.P5 is the occurrence report. The seized articles were produced before the court on the next day itself. The sample was sent for chemical analysis and after the chemical analysis, the report was received which was marked as Ext.P9. The report shows that the sample contained ethyl alcohol. After completing the investigation, PW1 filed final report before the learned Magistrate. The learned Magistrate after Crl.Appeal No.2246/2008 -:4:- complying with the statutory formalities, committed the case for trial to the Court of Sessions. 4. The accused appeared before the Court below. After hearing both sides, the court below framed charge against the accused under Sections 55(i) and 8(1) of the Abkari Act. The charge was read over and explained to the accused who pleaded not guilty. 5. The prosecution examined PWs 1 to 4 and marked Exts.P1 to P9. MO1 series and MOII series were identified. On completing the prosecution evidence, the accused was questioned u/s 313 of Cr.P.C. He denied all the incriminating circumstances brought against him during evidence. After trial, the court below found the accused guilty u/s 55(i) of the Kerala Abkari Act and convicted him for the said offence. The accused was sentenced to undergo rigorous imprisonment for 1 year and to pay a fine of `1,00,000/- in default to suffer simple imprisonment for three months as per the impugned judgment. The said judgment is under challenge in this appeal. 6. Heard Sri.T.Gopalakrishnan, the learned counsel for Crl.Appeal No.2246/2008 -:5:- the appellant and Sri.Aravind V.Mathew, the learned Public Prosecutor. 7. The learned counsel for the appellant assailed the finding of guilt passed against the accused mainly on the ground that the official with whom the sample was sent for chemical analysis was not mentioned in the forwarding note nor did the prosecution examine the thondi clerk of the court or Excise Guard concerned to prove the tamper proof despatch of the sample to the laboratory, the benefit of which should definitely go to the accused. A similar issue was considered by this Court in _**Kumaran P. v. State of Kerala and Another**_ (2016 (5) KHC 632). It was held in the said decision thus: _"7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name o the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2-8-2007. It is not discernible as to why the space meant for writing the name of the Excise_ Crl.Appeal No.2246/2008 ## -:6:- _Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext P9 as to when the learned magistrate put the initial in the forwarding note. The learned magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned magistrate when the initial was made, it is not clear from Ext P9 as to how many days before the despatch of the sample, the learned magistrate put the initial in Ext P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamperproof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of_ Crl.Appeal No.2246/2008 ## -:7:- _doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained"._ 8. Ext.P8 is the forwarding note whereby the sample was forwarded to the chemical examiner. It is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P9 chemical analysis report shows that the sample was received in the laboratory through the excise guard Sri.K.G.Reghu. It is also not discernible from Ext.P8 as to when the learned Magistrate put the initial in the forwarding note. The date is absent. Since the date was not written by the learned Magistrate when the initial was made, it is not clear in Ext.P8 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P8. The prosecution did not examine the thondi clerk of the court or the excise guard concerned to prove the tamper proof despatch of the sample to the laboratory. It is fatal to the prosecution case. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with Crl.Appeal No.2246/2008 -:8:- during the period in question. In _**Moothedath Sivadasan v. State of Kerala**_ (2021 (2) KLJ 80), this Court recently has held that in the absence of any link evidence to show that the very same sample which was 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 accused. 9. The next point canvassed by the learned counsel for the appellant is about the delay in filing the final report. The occurrence was on 3/9/2003. The final report was filed on 30/10/2004. Hence, there is a delay of about 14 months. Section 50 of the Abkari Act mandates that investigation into the offence shall be conducted and completed without unnecessary delay. This Court in _**Chandran @ Chandrashekaharan v. State**_ (2016 (5) KHC 650) has held that when there is undue delay in completing the investigation and filing the charge sheet before the court and the prosecution fails to explain the delay, it is fatal to the case of the prosecution. The delay has not been explained by the prosecution. The aforesaid vital aspects were not taken Crl.Appeal No.2246/2008 ## -:9:- into consideration by the court below while appreciating the prosecution evidence. For these reasons, I hold that the conviction and sentence passed by the court below cannot be sustained. In the result, Crl.Appeal stands allowed. The conviction and sentence passed by the Court below vide the impugned judgment are set aside. The appellant is found not guilty of the aforesaid offence and is acquitted. His bail bond is cancelled. **Sd/-** **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp**