Bijukumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 24TH DAY OF OCTOBER 2018 / 2ND KARTHIKA, 1940** ## **CRL.A.No. 2012 of 2007** **AGAINST THE JUDGMENT IN SC 650/2003 of ADDL.DISTRICT & SESSIONS JUDGE, FAST TRACK (ADHOC) COURT, MAVELIKKARA DATED 17-10-2007 AGAINST THE ORDER IN CP 52/2003 of JUDICIAL FIRST CLASS MAGISTRATE COURT, MAVELIKKARA** ## **APPELLANT/ ACCUSED :** **BIJUKUMAR, S/O/. THANKACHAN, AGED 33 YEARS, THACHAYIL KIZHAKKATHIL,, ARANOOTTIMANGALAM MURI, VETTIYAR VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT.** **BY ADV. SRI.C.B.SREEKUMAR** ## **RESPONDENT/ COMPLAINANT :** **STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, MAVELIKKARA EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.K.K.SHEEBA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.09.2018, THE COURT ON 24.10.2018 PASSED THE FOLLOWING :** **CRL.A.No. 2012 of 2007** 2 ## **JUDGMENT** The appellant is the accused in SC.No.650 of 2003 on the files of the Additional District and Sessions Judge (Adhoc) Fast Track Court, Mavelikkara. This case arose out of the final report submitted by the Excise Inspector of the Mavelikkara Excise Rage, on completion of the investigation in Crime No.70/2002, which was registered against the appellant for the offences punishable under Sections 8(1), 8(2) & 55(a) of the Kerala Abkari Act. The trial court found the appellant guilty of the offences under Sections 8(1), 8(2) & 55(a) of the Kerala Abkari Act and sentenced him to undergo rigorous imprisonment for a term of 3 ½ years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of one year. 2. The prosecution allegation is that on 20.03.2002, at 8.00 a.m., CW1, the Preventive Officer, Mavelikkara Excise Range Office and party, while on patrol duty through Vettiyar Village, Arunootimangalam Muri to Kallumala, while travelling through the PIP canal road, found the appellant on the southern side of the canal road transporting illicit arrack of about 1 ½ **CRL.A.No. 2012 of 2007** 3 litres in a 1 ½ plastic bottle, near to the culvert leading to Thachayil house, seized the property, arrested the appellant and charge sheeted the case. The accused was tried before the Additional District and Sessions Judge (Ad hoc) Court, Mavelikkara, where he was found guilty and convicted. Highly aggrieved by the conviction and sentence passed against the appellant, he preferred a Criminal appeal under Section 374(3) of the Code of Criminal Procedure. 3. The learned counsel for the appellant contended that the trial court was wrong in appreciating the evidence let in and convicting the appellant. It is also contended that there was no reasonable evidence on record to conclude that M.O.1 was possessed by the appellant and it was taken from the physical possession of the appellant. 4. The appellant has been falsely implicated in the crime at the instance of one Vijayakumar, who is an Abkari vendor and neighbour of the appellant, only for wreak vengeance for filing several complaints against him. The independent occurrence witness was examined as PW2 to prove Ext.P1 mahazar, arrest and seizure of the accused and contraband item. But, he did not support the prosecution case **CRL.A.No. 2012 of 2007** 4 and he categorically denied that he did not see the accused as a person, who engaged in selling arrack. There is no evidence from anywhere except the Excise officials to connect the appellant with the commission of the said crime. 5. The trial court believed the version of the Excise officials, for convicting the appellant. Under the above circumstances, the appellant prays for setting aside the conviction and sentence passed by the learned Additional District and Sessions Judge, Fast Track (Adhoc), Mavelikkara in S.C.No.650 of 2003. 6. The evidence of the prosecution consists of oral testimony of PWs 1 to 5 and Exts.P1 to P9 and MO1. According to the prosecution, on 20.03.2002 at 8.00 a.m., while PW1, who was the Preventive Officer, Mavelikara Excise Range Office on patrol duty through Vettiyar Village, Arunootimangalam Muri to Kallumala, travelling through the PIP canal road, found accused on the southern side of the canal road, near to the culvert leading to Thachayil house under suspicious circumstances and was intercepted. Accordingly, he seized the contraband items from the possession of the appellant and on inspection, he found a plastic bottle, having a capacity of 1.5 **CRL.A.No. 2012 of 2007** 5 litres containing full of liquid in it. He tasted and smelled the liquid and confirmed it as illicit arrack. 7. He prepared Ext.P1 seizure mahazar. He arrested the appellant and prepared Ext.P2 arrest memo, Ext.P3 arrest notice and Ext.P4 notice to legal aid counsel. Mo1 is the seized plastic bottle of 1.5 litres. He took sample of 200 ml. from MO1 and affixed his personal seal on it and label as per Rules. PW2 is an independent witness to search and seizure, turned hostile to the prosecution denying his signature in Ext.P1 mahazar. PW3 is another independent witness to search and seizure, would admit his signature in Ext.P2 arrest memo and Ext.P3 arrest notice. PW4 is the Excise Inspector, Mavelikkara Excise Range Office, who has accepted the contraband property and the appellant from PW1 on 20.03.2002. He registered Crime No.70/2002 under Sections 8(1) & 8 (2) and 55(a) of the Kerala Abkari Act. Ext.P5 is the Occurrence Report. He produced the contraband articles as per Ext.P6 list and the appellant was produced as per Ext.P7 remand application before the court. He prepared Ext.P8 requisition to forward sample for chemical analysis wherein the specimen seal used for sampling is specified. He produced Ext.P9 report of the Assistant **CRL.A.No. 2012 of 2007** **==> picture [6 x 8] intentionally omitted <==** Chemical Examiner to Govt. wherein it is certified that the sample contains 37.15% by volume of ethyl alcohol contents in it. He completed investigation and charged sheeted the case. PW5 was the Preventive Officer, Mavelikkara Excise Range Office, who accompanied PW1 on 20.03.2002 and was present with him at the time of search and seizure. He has admitted the signature in Ext.P1 seizure mahazar. He identified MO1 and the label affixed in MO1 and the accused in this case. 8. At the time of argument, the learned counsel for the appellant has pointed out that the forwarding note has not been marked in this case and that itself is fatal to the prosecution. In this connection, he has cited a ruling in _**Gopalan v. State of Kerala [2016 KHC 541]**_ , wherein it was held that the effect of non-production of the forwarding note before the court is fatal to the prosecution. In the absence of forwarding note made available before the court, it can be said that the prosecution was unable to establish the link evidence connecting the accused with the contraband seized and the sample analyzed in the laboratory and in the said circumstances, the accused is entitled to the benefit of doubt. **CRL.A.No. 2012 of 2007** 7 9. The lower court, after evaluating the entire evidence ultimately found that the appellant is guilty under Sections 8(1) & 8(2) and 55(a) of the Kerala Abkari Act. In order to establish the guilt of the appellant/ accused, the prosecution has to establish that these contraband articles were seized directly from the appellant. Then he has prepared Ext.P1 mahazar and taken sample from the custody of the appellant/ accused. Then the prosecution has to prove that the label affixed on MO1 contained the signature of the appellant/ accused, independent witnesses and the detecting officer. When these facts were proved by the prosecution, definitely, the appellant/ accused would be found guilty under the offence, as alleged. 10. Here it has to be analysed whether the evidence adduced by the PWs 1 to 5 are sufficient enough to prove the facts as mentioned above. The case of the prosecution is that a 'can' having the capacity of 1 ½ litres of illicit arrack was seized from the custody of the appellant/ accused, while PW1 was working as a Preventive Officer, Mavelikkara Excise Range Office. PW5 is another Preventive Officer, who had accompanied PW1 and has supported the case of PW1. It is **CRL.A.No. 2012 of 2007** 8 true that one of the independent witnesses turned hostile to the prosecution. But, PW3, another independent witness admitted his signature in Ext.P2 arrest memo and Ext.P3 arrest notice. It is also proved by the prosecution that the contraband articles, which was sent for chemical analysis contain 37.15% by volume of ethyl alcohol. Moreover, it is stated that the contraband articles were produced along with the forwarding note and it was marked. Ext.P8 is the requisition to forward sample for chemical analysis. 11. The learned counsel for the appellant has argued that the prosecution has not produced and marked forwarding note in this case. In _**Prakasan and Another v. State of Kerala [2016 KHC 96]**_ , “Further in the absence of specimen seal, impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the **CRL.A.No. 2012 of 2007** 9 articles were produced in Court in the same condition in which it was seized and it reached the Chemical Examiner's Lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused. 12. So, considering these facts and after evaluating the evidence in this case, I find that no forwarding note was marked before the court. There is no evidence before the court that any forwarding note was prepared and produced before the court by the Excise Officials. So, as has been held in the ruling in Prakasan's case (supra), since no forwarding note is available before the court, the prosecution could not able to succeed the link evidence connecting the appellant with the contraband articles seized and the sample analysed in the laboratory. Accordingly, the appellant is entitled to get the benefit of doubt. 13. Moreover, either PW1 or PW4 has not given **CRL.A.No. 2012 of 2007** 10 deposition to the effect that the samples seized from the possession of the appellant was properly sealed by affixing the signature of the accused, and the independent witnesses and detecting officer. In _**Majeedkutty v. The Excise Inspector, Kollam Range [2015 (1) KHC 424]**_ it is held that in the absence of providing sample seal of Court for comparison with the seal on contraband, before Chemical Examiner, it cannot be said that sample of contraband allegedly seized has reached Chemical Examiner. 14. Here the prosecution has succeeded in proving that the contraband articles were analysed by the Chemical Analysis Laboratory. The prosecution has failed to succeed to prove the link connecting the appellant with regard to the contraband articles and the non-production of the forwarding note. So, only on that ground, the appellant is entitled to get acquittal as prayed for. Accordingly this appeal is allowed. In the result, the conviction and sentence imposed against the appellant in S.C.No.650/2003 on the file of the Additional District and Sessions Judge, Fast Track (Adhoc) Court, Mavelikkara is hereby set aside. He is set at liberty. **CRL.A.No. 2012 of 2007** 11 The bail bond, if any, executed shall stand cancelled. Sd/- **ANNIE JOHN, JUDGE** True copy PA to Judge RKM