Baby, D/o Suseela v. State of Kerala and Excise Inspector, Kazhakoottom

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 2ND DAY OF MARCH 2016/12TH PHALGUNA, 1937** **CRL.A.NO. 1671 OF 2004 (C) ---------------------------** **AGAINST THE JUDGMENT IN SC NO.984/2001 OF ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-I), THIRUVANANTHAPURAM DATED 30-09-2004** ## **----------------------------** **APPELLANT(S)/ACCUSED: --------------------** **BABY, D/O.SUSEELA, KIZHAKKEKARA PUTHEN VEEDU, NAVUNGOTTUKONATHU, MELULIYAZHATHARA DESOM, ULIYAZHITHARA VILLAGE, THIRUVANANTHAPURAM.** **BY ADV. SRI.D.AJITHKUMAR** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **2. EXCISE INSPECTOR, EXCISE RANGE, KAZHAKUTTOM.** **BY PUBLIC PROSECUTOR SRI. N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Appeal No.1671 of 2004 ---------------------------------Dated this the 2[nd] day of March, 2016** ## **J U D G M E N T** This appeal is preferred by the accused against the conviction and sentence in S.C. No.984 of 2001 of the Additional Sessions Judge, [Fast Track-I], Thiruvananthapuram under Sec.8(1) of the Kerala Abkari Act. The charge against the appellant is that on 22.06.1998 at 1.45 p.m., she was found in possession of 5 litres of arrack in MO1 plastic can on the western side of the Panavila-Maruthoor road in Gandhipuram junction by the Preventive officer, Excise Control Room, Thiruvananthapuram. The accused was arrested and the contraband articles were seized. After completing investigation, the Excise Inspector, Kazhakoottam laid charge before the Judicial First Class Magistrate Court-II, Thiruvananthapuram under Sec.8(1) and 55(a) of the Abkari Act. Subsequently, the case was committed to Sessions Court, Thiruvananthapuram, from there, it was made over to Additional Sessions Judge. Crl. Appeal No.1802 of 2004 2 2. During trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P5 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning her. She did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused under Sec.55(a) and Sec.8(1) of the Kerala Abkari Act and sentenced her to rigorous imprisonment for two years and fine of Rs.1,00,000/- (Rupees one lakh only) with default sentence of one year. Being aggrieved by that, she preferred this appeal. 3. Heard both sides. 4. Learned counsel appearing for the appellant contended that no sample was taken from the place of occurrence by PW4 and also no evidence has been adduced by the prosecution to show that who took sample from the seized arrack. The evidence of PW3 is inconsistent with the evidence of PW4. The independent witnesses PW1 and PW2 did not support the case. 5. Learned Public Prosecutor has no objection with regard to the above contention. Crl. Appeal No.1802 of 2004 3 ## 6. This court in **Ravi V. State of Kerala [2011** ## **(3) KLT 353]** held as follows: “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 (1) 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 PW4. Hence, the result of Ext.P7 Chemical Analysis cannot be applied against the appellant.” Crl. Appeal No.1802 of 2004 4 7. From the above decision, it is clear that it is the primary duty of the prosecution to prove that they took sample from the seized article at the time of seizure and ultimately, it was produced in the chemical examination lab in a tamper proof condition. For ascertaining the compliance of proper sampling, I have examined the oral evidence of the occurrence witnesses. 8. PW4 is the Preventive officer attached to Excise Control Room. The evidence of PW4 shows that, on 22.06.1998 at 1.45 p.m., he was conducting patrol duty and when he reached at Gandhipuram junction, he found the appellant carrying plastic bag. Upon suspicion, he intercepted her and inspected the bag, in which, he detected 5 litres of arrack in a can. PW4 identified MO2 bag and MO1 plastic can. He seized the arrack after preparing Ext.P1 mahazar. The appellant was arrested. Ext.P2 is the arrest memo and Ext.P3 is the arrest intimation. The independent witnesses present there attested Ext.P1 mahazar. In cross examination, PW4 admitted that, he sealed MO1 can at the place of occurrence and not taken any sample from the place of ## Crl. Appeal No.1802 of 2004 5 occurrence. Therefore, it is true that PW4 has not taken any sample even if he seized the arrack as alleged. PW3, an independent witness accompanied PW4, deposed that PW4 took sample from the place of occurrence itself. He was also present at the time of seizure along with PW4. PW3 identified Ext.P1, MO1 and MO2. He also admitted that MO1 was sealed at the place of occurrence. But, during cross examination, he admitted that sample was taken before sealing the cannas. PW1 and PW2, the independent witnesses, did not support the seizure of MO1. They also denied their signatures in Ext.P1. 9. Analysing the evidence of PW1 and PW2, it is clear that there is no independent corroboration to the seizure of arrack narrated by PW4. But, the ocular evidence of PW3 is inconsistent with the oral testimony of PW4. Therefore, no credibility can be fastened upon the oral testimony of PW3. PW5 admitted that PW4 produced the contraband articles in his office and on that basis, he registered Ext.P4 crime and occurrence report. MO1 and MO2 were also produced before him. PW6 completed investigation and laid charge before the Court. The ## Crl. Appeal No.1802 of 2004 6 contraband articles and the accused were produced before court by PW5. PW6 obtained Ext.P5 chemical Examination Report, in which, it stated that 30% of ethyl alcohol by volume in the sample. 10. Even though, Ext.P5 was obtained, nothing was stated by PW4, PW5 and PW6 about the sampling. It is the primary duty of the detecting officer or the Excise Inspector to take sample from the seized article. If the detecting officer, PW4, took sample, he has to narrate the procedure adopted for taking sample and also to obtain the signature of independent witnesses in the mahazar. PW5 also has no case that he took sample. According to his evidence, he produced the contraband article and the accused before the court. When prosecution is keeping silence with regard to the taking of sample, it is presumed that proper sampling was not done in this case. 11. Analysing the facts and circumstances of the case, a conviction cannot be entertained on the basis of Ext.P5 Chemical Examination Report. When there is no satisfactory evidence to show that the sample was taken from MO1, it was produced before the court, from there, Crl. Appeal No.1802 of 2004 7 it was forwarded to chemical examination lab, the appellant is entitled to get the benefit of doubt. In the result, the conviction and sentence passed by the trial court under Sec.55(a) and Sec.8(1) of the Kerala Abkari act is set aside. The appellant is acquitted and set at liberty. This appeal is allowed as above. Sd/- **P.D. RAJAN JUDGE** NS/02/03/2016 / True Copy / P.A. To Judge