Ashokan and Jagadevan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 22ND DAY OF FEBRUARY 2016/3RD PHALGUNA, 1937** **CRL.A.No. 1706 of 2004 (C)** **---------------------------** **AGAINST THE JUDGMENT IN SC 611/1999 of ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC)II,KOLLAM DATED 13-09-2004** **APPELLANT(S)/ACCUSED:** **---------------------** **1. ASHOKAN, S/O.GOPALAN UNNITHAN, TACHAYIL VEEDU, NEAR PULIKUZHI JUNCTION, KOTTACKERAM, CHERRI, PARIPPALLY VILLAGE.** **2. JAGADEVAN, S/O.JANARDHANAN, CHARUVILA PUTHEN VEEDU, POOVATHOOR, VELAMANNOOR CHERI OF DO.** **BY ADV. SRI.B.RENJITHKUMAR** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI. N. SURESH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.1706 of 2004 ---------------------------------------------Dated this the 22[nd] day of February, 2016 ## **JUDGMENT** This appeal is preferred by the accused against the conviction and sentence in S.C.No.611/1999 of Additional District & Sessions Judge (Adhoc)-II, Kollam. The appellants were charge sheeted u/s.55(a) and (i) of the Abkari Act on allegation that on 10.9.1997 at 5.30 p.m., they were found in possession of seven litres of arrack in 10 litre kannas at Parippally Village, Kottackakom cherri in the Pachayil property near Pulikuzhy junction . The Sub Inspector of Police, Paripally conducted a search and seized the arrack from the property of the 1st accused, while conducting sale. The contraband articles were seized after preparing a mahazar. After completing investigation, the Sub Inspector, Parippally laid charge against Crl.Appeal No.1706/2004 2 the accused u/s.55(a) and (g) of the Abkari Act before Judicial First Class Magistrate, Paravoor, from there, the case was committed to Sessions Court. During trial, prosecution examined PW1 to PW4 and marked Exts.P1 to P4. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning them under S.313 Cr.P.C. They did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused and sentenced to rigorous imprisonment for three years each and fine of 1 lakh each u/s.55(i) of the₹ Abkari Act, in default, simple imprisonment for one year each. No separate sentence was imposed u/s.55(a) of the Abkari Act. Being aggrieved by that, they preferred this appeal. 2. Heard both sides. The learned counsel appearing for the appellants contended that no evidence has been adduced by the prosecution to prove the possession of the property, from where MO1 was seized. No search Crl.Appeal No.1706/2004 3 memorandum was prepared and no evidence has been adduced by the prosecution to show that the seized articles were properly produced before Court in a tamper proof condition. 3. The learned Public Prosecutor has no objection with regard to the above arguments. 4. The offence was detected by PW3, then S.I. of Police, Parippally. His evidence shows that on 10.9.1997 at 5 p.m., he got information that the accused was conducting sale of arrack in the property at Pulikuzhy. He proceeded to the place of occurrence, at that time, A1 ran away from the place of occurrence and A2 was found carrying MO1. He inspected MO1 and detected 7 litres of arrack in it. He took 300ml as sample and sealed it at the place of occurrence. He prepared Ext.P1 mahazar. He identified MO1, reaching at the Police Station, he registered a crime and Ext.P2 is the FIR. A1 was arrested on 11.9.1997 and he was produced along with 2nd accused. Ext.P3 is the property list. The sample taken was 4 Crl.Appeal No.1706/2004 forwarded to Chemical Examiner's lab through Court. Ext.P4 is the chemical examination result. On a close reading of the evidence of PW3, it is clear that PW1 has not complied with the procedure formalities provided at the time of seizure of arrack. The Police Officer has duty to affix his seal on the sample and to produce MO1 in the Police Station and the articles seized shall always be packed and affixed with lable and seal at the place of occurrence and to obtain signature of the witnesses and affix signature of the witnesses. While deposing, PW1 has not deposed that he obtained label and signature of the accused and PW3 put his signature at the place of occurrence. Excise Manual Rule 33 says that the procedure applies a mutatis mutandis, when articles are deposited in a Police Station also. 4. PW1 and PW2 are the Police Constables accompanied PW3. They also stated a similar version given by PW3. PW4 completed investigation and laid charge before Crl.Appeal No.1706/2004 5 Court. Analysing the above evidence, it is found that no evidence has been adduced by the prosecution to show that at the time of seizure of the article or production of the article before Court, they prepared a mahazar. Therefore, mere arrest of the accused from the place of occurrence with MO1 itself is not sufficient to fasten any criminal liability upon the appellants. ## 5. This Court in **Rajamma** v. **State of Kerala** [2014(1) KLT 506] held as follows: “But mere arrest of the accused with the material objects is not sufficient to establish that the accused has committed the offence punishable under Section 55(a) of the Abkari Act. The prosecution has got a further duty to prove that, when the accused was arrested, she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me, there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a forwarding note and submitted before the court for sending the samples for chemical analysis.” The directions issued in the Excise Manual has to be strictly followed by the Police Officer and Excise Officials. The Crl.Appeal No.1706/2004 6 detecting officer has responsibility to affix his specimen seal in the seized articles and in the sample and also a requisition has to be filed before Court for sending the sample to the chemical examiner's lab, in which he has to affix his specimen seal. The chemical examiner has to verify such impression of the seal and ensure that the sample seal is talling with the seal affixed on the sample bottle. Such observation is not found in Ext.P4 chemical examination report also. Therefore, the chemical examination report itself is not sufficient to prove the possession of the arrack. 6. A Division Bench of this Court in **Ravi** v. **State of Kerala** [2011 (3) KLT 353] held as follows: 13. It is difficult for us to believe that PW 4 had produced the properties on 25/08/1997 and the Thondy Section Clerk refused to receive the properties on the ground that he was too busy. Even assuming that such a thing happened, we would have expected the prosecution to examine the Thondy Section Clerk to substantiate the above explanation. For reasons best known to the prosecution the Thondy Section Clerk was not examined. If so, it cannot be assumed that the property was in the safe custody of PW 4 until their production before Court after 16 days. There is the possibility that the properties would Crl.Appeal No.1706/2004 7 have been tampered with. The prosecution, in a case of this nature 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 by change of hands in a tamper-proof condition. (Vide - State of Rajasthan v. Daulath Ram (AIR 1980 SC 1314) and Valsala v. State of Kerala (1993 (2) KLT 550(SC). No conviction can be entered against the accused in a prosecution as the present one 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 (See - Sathi v. State of Kerala (2007 (2) KLT SN 57 (C.No.82) and Sasidharan v.State of Kerala (2007(1) KLT 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW 4. Hence, the result of Ext. P7 Chemical Analysis cannot be applied against the appellant. It is true that PW3 arrested the 2nd accused on 10.9.1997 and the 1st accused on 11.9.1997 and produced before Court with MO1. In the absence of specific compliance of the procedure, it is not safe to rely Ext.P4 chemical analysis report. It is the duty of the prosecution to prove the case beyond reasonable doubt. When an offence with stringent punishment is provided, the prosecution has duty to prove that the articles Crl.Appeal No.1706/2004 8 seized from the possession of the accused is prohibited arrack, then only they can claim that they proved the case beyond reasonable doubt. In the absence of such evidence, the conviction and sentence passed by the Additional Sessions Judge, Kollam u/s.55(a) and (i) of the Abkari Act are to be set aside. In the result, the conviction and sentence passed by the Additional Sessions Judge, Adhoc-II, Kollam u/s.55 (i) of the Abkari Act are set aside and the accused is acquitted and set at liberty. Crl.Appeal is allowed. **P.D. RAJAN, JUDGE.** acd