Babu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937 CRL.A.No. 1501 of 2006 --------------------------- AGAINST THE JUDGMENT IN SC 880/2000 of ADDL.SESSISONS COURT (ADHOC) III, THIRUVANANTHAPURAM CP 29/2000 of J.M.F.C.-II,ATTINGAL ## APPELLANT/ACCUSED: ------------------------ BABU, S/O.SADANANDAN, PUTHEN VEEDU, ALTHARA, VELLALLUR DESAM CHIRAYINKIL TALUK, THIRUVANANTHAPURAM DIST. BY ADVS.SRI. K.SIJU SRI.S.SUDHEESHKAR RESPONDENT/COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY EXCISE RANGE OFFICER, CHIRAYINKEEZHU THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LILLIE LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-022016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 1501 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 24[th] day of February, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-III, Thiruvananthapurm, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo simple imprisonment for one year and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo imprisonment for three months. Challenging the conviction and sentence 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. CRA 1501/2006 2 3. The prosecution case is briefly stated as follows: PW1, the Preventive Officer, Excise Range Office, Chirayinkeezhu, and his party were on patrol at Vellalloor in Vellalloor village at about 7.30 p.m. on 16.8.1999. While so, the appellant was seen coming from the opposite side carrying a rose plastic bag in his right hand. Seeing the excise party, the appellant attempted to flee away. But, the excise party stopped him there. On examining the plastic bag, 18 covers of 150 ml. were found in it. One of the covers was opened and examined when it was realised that the covers contained arrack. Since the appellant committed an offence under the Abkari Act, he was arrested by PW1 preparing Ext.P1 Arrest Memo. Ext.P3 is the Arrest Intimation. A total quantity of 2.7 litres of arrack was found in 18 covers. The opened cover was pasted and all the 18 covers were put together in the rose bag and sealed and labelled and seized by PW1 under Ext.P2 Seizure Mahazar in the presence of witnesses. Thereafter, PW1 and his party CRA 1501/2006 3 reached the Excise Range Office, Chirayinkeezhu, with the appellant, properties and the records. PW1 registered Crime No. 34 of 1999 of that Range Office in respect of the occurrence. Ext.P4 is the Crime and Occurrence Report thus prepared by PW1. The appellant, properties and the records were produced before the Judicial First Class Magistrate's Court-II, Attingal. Ext.P5 is the List of Property and Ext.P6 is a copy of the Forwarding Note. Ext.P9 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. The investigation of the case was conducted by PW4, the Excise Inspector, Excise Range Office, Chirayinkeezhu. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thiruvananthapuram, and, from there, it was CRA 1501/2006 4 made over to the Assistant Sessions Court, Attingal. Later, the case was transferred to the Additional Sessions Court (Ad hoc)-III, Thiruvananthapuram. 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 P9 and MO.1 series and MO.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 challenging the conviction and sentence passed against him. It is the prosecution case that the appellant was found CRA 1501/2006 5 possessing 2.7 litres of arrack at about 7.30 p.m. on 16.8.1999 and he was arrested then and there by PW1 and the contraband was seized under Ext.P2 Seizure Mahazar. The prosecution does not have a case that PW1 has drawn a separate sample for subjecting the same to chemical analysis from the bulk of arrack allegedly seized from the appellant. Ext.P2 Seizure Mahazar also does not say that such a sample was drawn by the excise party. Ext.P5 is the List of Property with which the properties were produced before the court. This document also does not show that sample of the contraband seized was produced before the court. Ext.P6 is a copy of the Forwarding Note submitted by PW1 describing the sample of the contraband to be subjected to chemical analysis. The sample is described as 180 ml. of sealed and labelled bottle containing 150 ml. of arrack. Ext.P6 does not contain the sample impression of the seal affixed on the sample bottle. 6. None of the excise officials examined in this case has CRA 1501/2006 6 a case that sample was taken by the excise officials and produced the same before the court. There is also no evidence as to whether the sample was taken from the office of the court. In short, there is no evidence at all to show as to whether the sample was taken by the Investigating Agency or from the court. The property clerk who was dealing with the properties in the court was not examined. If the property clerk was examined, some light would have been available as to whether the sample was taken from the court. Since such a person was not examined, no such evidence is available. In fact, there is no assurance that the sample taken from the bulk of arrack allegedly seized from the appellant had, in fact, reached the Chemical Examiner for analysis. 7. Ext.P9 is the Certificate of Chemical Analysis. It is reported in this document that ethyl alcohol was detected in the sample. It is also stated in Ext.P9 that the seal on the bottle was intact and found tallied with the sample seal CRA 1501/2006 7 provided. Whose sample seal was so provided? Ext.P6 copy of the Forwarding Note does not contain the sample impression of the seal affixed on the sample bottle. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext.P6. Whether the sample seal was affixed on the original of Ext.P6 sent to the Chemical Examiner? Normally, if the sample seal does not appear in the copy of the Forwarding Note, in this case it is Ext.P6, 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, 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, CRA 1501/2006 8 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 was not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution. In view of these facts, there is no assurance that the sample 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 sample taken from the bulk allegedly seized from the appellant in this case. 8. This Court in **Rajamma v. State of Kerala (2014** - **(1) KLT 506)** has held as follows : - “..........The investigating officer has also CRA 1501/2006 9 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** CRA 1501/2006 10 **(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 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, in the case on hand, Ext.P9 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 9. A few more facts also have to be considered along with this. PW1 stated before the court that after producing the properties before the court, they were returned to the excise office for custody. Whether the properties were returned after taking sample from the court or not? No answer is there. If the properties were so returned, at CRA 1501/2006 11 what point of time the sample of the contraband was taken? No answer is there. Whether the contraband so returned to the excise office was kept under proper custody? No answer is there for this question also. In **Narayani v. Excise Inspector(2002(3)KLT 725),** a learned single Judge of this Court observed 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 13.9.98 (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................” Therefore, the accused was found to be entitled to the benefit of doubt in that case. In the case on hand also, such a benefit should be extended to the appellant. CRA 1501/2006 12 10. PW1 is the Detecting Officer. PW5, the Preventive Officer, Excise Range Office, Chirayinkeezhu, claimed to have accompanied PW1 at the time of detecting the offence. Both of them, by and large, supported the prosecution version of occurrence. That does not mean their evidence is free from material contradiction. PWs.2 and 3 were cited and examined as independent occurrence witnesses. They have not supported the prosecution version of occurrence. They were declared hostile to the prosecution. Their evidence is of no use for the prosecution to prove their case. It is the definite case of the defence that the appellant was taken into custody by the excise party while he was playing cards along with others. Because of the quarrel that took place between the card players and the excise party with regard to the power of the excise party to take action against the persons playing cards, the excise party has taken the appellant into custody. In short, no such occurrence as claimed by the prosecution has taken place at CRA 1501/2006 13 the time and place claimed by the prosecution. The Investigating Agency has not prepared a Scene Mahazar showing the place of occurrence. What was the reason that prevented the Investigating Agency from preparing a Scene Mahazar? No answer is there. When all these facts are considered together, it is not at all safe to convict the appellant for a serious offence alleged under Section 8(1) and (2) of the Abkari Act. The appellant, at least, is entitled to the benefit of doubt. 11. For the foregoing reasons, 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. 12. In the result, the conviction and sentence passed against the appellant by the court below 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 him shall stand cancelled. The amount, if any, deposited by CRA 1501/2006 14 the appellant as directed by this Court shall be returned to him. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH** **JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge CRA 1501/2006 15