Babu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937 CRL.A.No. 51 of 2006 (F) ----------------------------AGAINST THE JUDGMENT IN SC 92/2005 of ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM DATED 04-01-2006 --------- APPELLANT/ACCUSED: ------------------------- BABU, AGED 34, S/O.PADMANABHAN, CHRAMPALLY HOUSE, MALAYATTOOR KARA MALAYATTOOR VILLAGE. BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, KALADY RANGE. PUBLIC PROSECUTOR MS.SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.51 of 2006 -----------------------------------------------Dated this the 19[th] day of January, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Ernakulam, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of 1 lakh and, in default of payment of₹ fine, to undergo simple imprisonment for a period of one year. 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 Range Office, Kalady, and his party were on patrol at about 11.30 a.m. on 13-03-2002. When they reached near Pallupetta bridge, they got Crl. Appeal No.51 of 2006 -2- information that the appellant was selling arrack on the bank of Periyar. Soon PW1 and his party reached that place when the appellant was seen removing sand with his hands at the puramboke on the northern side of Periyar. Knowing the excise party was coming, the appellant ran towards the river. The excise party also followed him. But, the appellant jumped into the river and escaped by swimming across the river. On examining the place where the appellant was seen removing the sand with his hands, two 10 litre jerrycans were found. One was black coloured M.O.1 and the other was blue coloured M.O.2. Since an offence under the Abkari Act was committed, the appellant was made an accused and the jerrycans containing arrack was seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. M.O.1 was marked 'A' and M.O.2 was marked 'B'. PW1 has drawn 200 ml. of arrack as sample in a 375 ml. bottle from the jerrycan 'A' and noted 'A1' on that sample. Similarly, he has drawn 200 ml. of arrack as sample in a 375 ml. bottle from Crl. Appeal No.51 of 2006 -3- the jerrycan 'B' and noted 'B1' on that sample. Both the sample bottles were sealed by PW1 with his metal seal. Thereafter, the excise party reached the Excise Range Office, Kalady, and registered Crime No.13 of 2002 of that Range Office in respect of the occurrence. Ext.P2 is the Crime and Occurrence Report thus drawn by PW1. The properties were produced before the Judicial First Class Magistrate's Court, Perumbavoor, along with Ext.P3 List of Property. Forwarding Note was also submitted before the court for subjecting the samples to chemical analysis. Ext.P4 is a copy of that Forwarding Note. Ext.P7 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. The appellant was arrested by PW1 at 7.30 a.m. on 07-08-2002. Ext.P5 is the Arrest Memo. Thereafter, PW4, the Excise Inspector, Excise Range Office, Kalady, continued the investigation. He has questioned the witnesses and recorded their statements. PW5, the Excise Inspector, Excise Range Office, Kalady, completed the -4- Crl. Appeal No.51 of 2006 investigation and submitted the Final Report before the court. 4. The learned Magistrate committed the case to the Court of Session, Ernakulam, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-I, Ernakulam. The court below framed a charge against the appellant alleging the offence under Section 8(1) and (2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P8 and M.Os.1 and 2 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(1) and (2) 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 Crl. Appeal No.51 of 2006 -5- challenging the conviction and sentence passed against him. It is the prosecution case that PW1 and his party detected the offence at about 11.30 a.m. on 13-03-2002 and seized M.Os.1 and 2 jerrycans containing full of arrack. According to the prosecution, the appellant ran away from the scene knowing the arrival of the excise party. Thereafter, PW1 arrested him from his house on 07-08-2002. PW1, by and large, deposed supporting the prosecution version of occurrence. PWs.2 and 3 were cited as independent witnesses for proving the prosecution version of occurrence. They have not supported the prosecution case. They were declared hostile to the prosecution. Their evidence is of no use for the prosecution to prove their case. PWs.4 and 5 are Investigating Officers. They are not eye witnesses to the occurrence. Therefore, the only evidence supporting the prosecution case is that of PW1. Whether it is safe to convict the appellant for a serious offence under Section 8(1) and (2) of the Abkari Act based on the evidence of PW1? I shall -6- Crl. Appeal No.51 of 2006 ## consider. 6. Exhibit P7 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. It is reported in this document that ethyl alcohol was detected in both the samples and the percent by volume of ethyl alcohol detected in 'A1' sample was 39.31 and 39.54 in 'B1' sample. It is also certified in Ext.P7 that the seals on the bottles were intact and found to be tallied with the sample seal provided. Whose sample seal was so provided? It is noted in Ext.P1 Seizure Mahazar that the sample bottles were sealed by PW1 with his metal seal. A specimen of that seal is seen affixed on Ext.P1. The samples were described as sealed in Ext.P3 List of Property produced before the court. PW1 deposed also that the samples were so sealed. It is the prosecution case that a Forwarding Note was produced before the court for subjecting the samples to chemical examination. PW1 deposed so before the court. Ext.P4 is a copy of that Forwarding Note. A specific space is Crl. Appeal No.51 of 2006 -7- provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext.P4. Whether the sample seal was affixed on the original of Ext.P4 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext.P4, it has to be presumed that such sample seal was not affixed on the original Forwarding Note unless proved otherwise. A copy of the Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evident from the contents of the form of the Forwarding Note itself. They include the quantity and description of the sample drawn from the bulk of the contraband, the details of the case and the space for providing the sample impression of the seal affixed on the sample taken from the bulk of the contraband. Therefore, as already stated, the absence of sample seal in the space provided in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal is not provided in the original Forwarding Note. Crl. Appeal No.51 of 2006 -8- Of course, this is only a rebuttable presumption. In the case on hand, such a presumption has not been rebutted by the prosecution. Moreover, the clerk who was dealing with the material objects in the court was not examined in this case. If, he was examined, the fact as to whether the samples were sent along with the Forwarding Note containing a sample impression of the seal affixed on the samples could have been proved. But, he was not examined. In view of these facts, there is no assurance that the samples of the contraband allegedly seized by PW1 from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the sample bottle is provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the samples taken from the bulk allegedly seized from the appellant in this case. 7. This Court in **Rajamma v. State of Kerala (2014** Crl. Appeal No.51 of 2006 -9- ## **(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.” A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** has held that the prosecution 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 in a tamper-proof condition. Also held that no conviction can be entered Crl. Appeal No.51 of 2006 -10- against the accused in a prosecution unless it is proved that 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, in the case on hand, Ext.P7 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 8. It is the prosecution case that the appellant has stored and possessed the contraband detected by PW1 and his party and, at the time of detection, the appellant ran away from the scene. Whether the prosecution could successfully prove the identity of the person allegedly ran away from the scene at the time of detecting the offence by PW1 and his party? The first document in relation to the identity of the accused prepared by PW1 is Ext.P1 Seizure Mahazar. PW1 claimed, while he was in the witness box, that the person ran away from the scene at the time of detecting the offence was the appellant. Can any sanctity be attached Crl. Appeal No.51 of 2006 -11- to such a statement made by PW1? He does not have a case in Ext.P1 Seizure Mahazar prepared by him that he could personally identify the appellant at the time of detecting the offence. Instead, it is stated in Ext.P1 that, on enquiry, he came to know that it was the appellant who ran away from the scene at the time of detecting the offence. PWs.4 and 5 are the Investigating Officers. PW4 categorically admitted that PW1 did not tell him that he could identify the accused by sight. He also did not tell him that he had followed the appellant. PW5 also admitted that the appellant was not shown to the witnesses and identified him by the witnesses. On going through the oral evidence of PWs.1, 4 and 5 as well as the statement made in Ext.P1 Seizure Mahazar, this Court finds that the prosecution failed in properly identifying the appellant as the real accused in this case. 9. For the foregoing reasons, it is totally unsafe to rely on the evidence of PW1 and convict the appellant for a serious offence under Section 8(1) and (2) of the Abkari Act. Crl. Appeal No.51 of 2006 -12- The appellant, at least, is entitled to the benefit of doubt. Therefore, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence alleged against him. 10. In the result, the conviction and sentence passed against the appellant are set aside. He is acquitted of the offence under Section 8(1) and(2) of the Abkari Act. He is set at liberty. The bail bond executed by the appellant shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal No.51 of 2006 -13-