Balan @ Balachandran v. State - Excise Inspector, Kalpetta Range

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` THURSDAY, THE 15[TH] DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944 CRL.A NO. 586 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 27.02.2008 SC 83/2006 OF ADDITIONAL ``` ``` DISTRICT COURT (ADHOC)-II, KALPETTA ``` ## **`APPELLANT/ACCUSED:`** ``` BALAN @ BALACHANDRAN, S/O KELU KOTTATHARA, VYTHIRI, WAYANAD DISTRICT. ``` ``` BY ADV CELINE JOSEPH ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE - EXCISE INSPECTOR, KALPETTA RANGE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S. (SR.P.P) ``` ## **`THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON`** ## **`15.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** ``` Crl.A.No.586 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 586 of 2008 --------------------------------------------- Dated this the 15[th] day of September , 2022 ## **JUDGMENT** Aggrieved by the judgment dated 27.02.2008, passed by the Additional Sessions Court (Adhoc)-II, Kalpetta in Sessions Case No.83/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 20.09.2004 by 11.30 hours, the appellant/accused was found transporting 5 litres of illicit arrack at Edakkunnu Colony on the Kurumbalakotta – Kottathara road in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was made over to the trial Court. On the appearance of the accused ``` Crl.A.No.586 of 2008 ``` ``` 3 ``` charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P8 and MO 1. 5. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. Exts.D1 & D2 were marked on the side of the defence. The Trial Court, after hearing the arguments addressed on both sides found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Smt. Celine Joseph, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The impugned judgment of conviction and sentence is ``` Crl.A.No.586 of 2008 ``` ``` 4 ``` challenged on the following grounds: - (1) The detection was made by an incompetent officer. (2) The prosecution has not succeeded in proving that the arrack allegedly seized from the possession of the accused reached the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellant/accused relying on SRO 234/1967, a Government notification issued under Section 4 of the Abkari Act, contended that the detecting officer is incompetent to effect detection. The learned counsel placed reliance on **Subrahmaniyan v. State of Kerala (2010 (2) KLT 470)** to buttress her arguments. 9. The detection was effected by the Assistant Excise Inspector, Excise Range office, Kalpetta. The detection was made on 20.09.2004. 10. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise Officials to discharge the various functions under the Kerala Abkari Act as Abkari Officers. By the said notification only Abkari Officials attached to Excise Range Offices or Circles, or such officers in ``` Crl.A.No.586 of 2008 ``` ``` 5 ``` charge of distilleries, warehouses, wineries etc., were given powers as Abkari Officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Item No.8 of the notification reads as follows: “In exercise of the powers conferred by Section 4 of the Abkari Act, 1 of 1077 and of all other powers hereunto enabling and in supersession of the previous notifications on the subject, the Government of Kerala hereby appoint the officers mentioned in column (1) of the Schedule to exercise the powers and perform the duties specified in that column with jurisdiction over the areas specified against each in column (2) of the said schedule, namely:- ## **Schedule** ||**Ofcers and their powers and duties**<br>**(1)**|**Local jurisdiction**<br>**(2)**| |---|---|---| |8<br>.|xx xx xx xx xx<br>All ofcers of the Excise Departmentnot<br> below the rank of Excise Inspectors-<br>to<br>perform the acts and duties mentioned<br>in Sections 40 to 53 inclusive of the Act<br>(emphasis supplied)|xx xx xx xx xx<br>Within the areas for<br>which they are<br>appointed.”| 11. As per the above notification the Assistant Excise Inspectors were not authorised to exercise powers under Section 40 to 53 of the Abkari Act. As per Section 4(d), officers shall be appointed to perform the acts and duties mentioned in Sections 40 to 53 inclusive of the Abkari Act. 12. Section 70 of the Act says that “all notifications and orders conferring powers, imposing duties and making appointments under this Act may respectively refer to the persons ``` Crl.A.No.586 of 2008 ``` ``` 6 ``` concerned specifically by name or in virtue of their office or to classes of officials generally by their official titles, and all courts shall take judicial notice thereof”. (emphasis supplied) 13. In the present case, the prosecution could not produce any material to show that the Assistant Excise Inspectors are conferred with the powers under Sections 40 to 53 of the Abkari Act. In **Suresh v. State of Kerala (2017(2) KHC 891)** , this Court held that a case built on the detection made by an incompetent officer will have to collapse necessarily. The prosecution must therefore fail on this ground alone. 14. The learned counsel for the appellant further relied on the following circumstances to contend that the contraband allegedly seized from the place of occurrence was not analysed in the Chemical Examiner’s Laboratory - (a) Ext.P2 seizure mahazar does not contain the specimen of the seal used by the detecting officer. - (b) The delay in the production of the properties including the sample before the Court has not been properly explained. ``` Crl.A.No.586 of 2008 ``` ``` 7 ``` (c) The custody of the sample during the interregnum from 20.09.2004 to 25.09.2004 has not been explained by the prosecution. 15. The alleged seizure was made on 20.09.2004. Ext.P6, Property List shows that the properties, including the sample, were produced before the Court only on 22.09.2004. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties before the Court. 16. In **Ravi v. State of Kerala [2011 (3) KHC 121],** on the question of delay in the production of properties, a Division Bench of this Court held as follows: “8. We, therefore, answer the reference as follows: 1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (Emphasis supplied) 17. In **Ravi's case (supra)** the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. ``` Crl.A.No.586 of 2008 ``` ``` 8 ``` 18. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 19. Ext.P2, the seizure mahazar, the contemporaneous document prepared to evidence seizure, does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. 20. In **Bhaskaran v. State of Kerala (2020 KHC 5296)** , this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 21. Ext.P8, Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 20.09.2004. The sample reached the laboratory only on 25.09.2004. Neither the Property Clerk of the Court nor Sri. Sureshbabu C.G., the Excise Guard who delivered the sample to the laboratory was examined by the prosecution. Therefore, the custody of the sample during the interregnum from 20.09.2004 to 25.09.2004 remains unexplained. ``` Crl.A.No.586 of 2008 ``` ``` 9 ``` ## 22. While dealing with a similar fact situation, this Court in ## **Viswanadhan v. State of Kerala** [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 23. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. 24. The non-examination of the officials who handled the sample during its transit from the Court to the laboratory leads to the conclusion that the prosecution failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram [AIR (1980) SC 1314].** 25. In the instant case, the prosecution could not establish that the arrack allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. ``` Crl.A.No.586 of 2008 ``` ``` 10 ``` Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 26. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the contraband substance said to have been seized from the possession of the accused {Vide: **State of Rajasthan v. Daulat Ram** [AIR 1980 SC 1314], **Sasidharan v. State of Kerala** [2007 (1) KHC 275]}. 27. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Therefore, the appellant/accused is entitled to the benefit of doubt. 28. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- ``` ``` K.BABU JUDGE ``` VPK