Chandrabose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 18TH DAY OF JANUARY 2016/28TH POUSHA, 1937** ## **CRL.A.No. 587 of 2004 (B)** **---------------------------------AGAINST THE JUDGMENT IN SC 254/2001 of ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA, DATED 05-03-2004** ## **APPELLANT(S)/ACCUSED:** **--------------------------------------** **CHANDRABOSE, AGED 49 YEARS, S/O. SREEDHARAN, THARAMELMANNIL VEEDU, ATHIRUMKALMURI, KOODAL VILLAGE, ADOOR TALUK.** ## **BY ADV. SRI.ANCHAL C.VIJAYAN** ## **RESPONDENT(S)/COMPLAINANT:** **------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, ADOOR, THROUGH PUBLIC PROSECUTOR, HIGH COUNT OF KERALA ERNAKULAM.** **R BY PUBLIC PROSECUTOR ADV. SRI.N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **AVS** ## **P.D.RAJAN, J** ## **========================= Crl.Appeal No.587 of 2004 ========================= Dated this the 18[th] Day of January, 2016** **J U D G M E N T ----------------------** This appeal is preferred against the conviction and sentence in S.C.No.254/2001 of the Additional Sessions Judge (Adhoc-I), Pathanamthitta, under Section 8(1) and (2) of the Abkari Act. 2. The charge against the appellant was that on 11-08-1998 at 11.00 a.m, the Excise Preventive Officer, Excise Range Office, Adoor, was conducting patrol duty within his jurisdiction. When he reached at Anjumukku junction, the appellant was found walking through the panchayath road leading to Anjumukku Rajagiri Estate, carrying a black cannas. On seeing the Excise party, he became perplexed and the Preventive Officer intercepted him and inspected the _Crl.Appeal No.587 of 2004 -:2:-_ cannas in which he detected 5 litres of arrack. Accused was arrested and contraband articles were seized. Reaching at the Excise Range Office, he registered a crime. After completing the investigation, the Excise Inspector, Adoor, laid charge before the Judicial First Class Magistrate's Court, Adoor. From there, the case was committed to Sessions court for trial. 3. During trial, prosecution examined seven witnesses and Exts.P1 to P6 were marked as documentary evidence. MO.1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the appellant, while questioning him. But he did not adduce any defence evidence. Learned Sessions Judge convicted the appellant under Section 8(1) and (2) of the Abkari Act and sentenced him to undergo simple imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only), in default, to undergo simple imprisonment for a period of two years. Being aggrieved by that, he preferred this appeal. _Crl.Appeal No.587 of 2004 -:3:-_ 4. The learned counsel appearing for the appellant contended that the sample was not taken from the seized article from the Excise Office. In the absence of such sampling, it is difficult to identify the seized article as illicit arrack. The observation of the trial court that the Chemical Examiner's Laboratory report and other documents are “documents of contemporaneous origin” and that itself, is sufficient for a conviction in an abkari case is unsustainable in law. There is no independent corroboration to the seizure of illicit arrack. When there is no proper sampling and forwarding note is not prepared, the appellant is entitled to get benefit of doubt. 5. The learned Public Prosecutor appearing for the respondent admitted that the sample was taken by the court and it was forwarded to the Chemical Examiner's Laboratory. 6. In this context, I have examined whether there is any evidence supporting the argument advanced by both sides. The Detecting Officer has no case that he took sample from the seized article. At the same time, the _Crl.Appeal No.587 of 2004 -:4:-_ Investigating Officer was not aware of the person who took the sample in this case. There was also no requisition from the side of the Investigating Officer for taking sample from the seized article. Forwarding note was also not produced before the court for sending the sample to the Chemical Examiner's Laboratory. The oral evidence of the occurrence witnesses and the Investigating Officer show that they were not aware of taking the sample. This court in **Rajamma v. State of Kerala** (2014 (1) KLT 506) held that mere production of the material object is not sufficient to establish that accused has committed the offence under the Abkari Act. It is held as follows: _“ Mere arrest of the accused with the material objects is not sufficient to establish that the accused has committed the offence punishable under S.55(a) of the Abkari Act. The prosecution has got a further duty to prove that, when the accused was arrested, she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me, there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a forwarding note and submitted before the court for sending the samples for chemical analysis. In this case no forwarding note or requisition for sending the samples for chemical analysis is prepared and filed before the court. If a formal requisition or forwarding note is prepared_ _Crl.Appeal No.587 of 2004 -:5:-_ _and filed before the court, the same would have contained the sample seal, of th seal allegedly affixed by PW.1 on the sample bottle. In 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.”_ 7. In this context, I have perused the oral and documentary evidence in this case. PW1 is the Preventive Officer attached to the Excise Range Office, Adoor. His evidence shows that on 11-08-1998, while he was conducting patrol duty along with his party and reached at Anjumukku Junction on the Rajagiri Estate Road, at that time, the appellant was found carrying MO.1 and PW.1 intercepted him and detected 5 litres of arrack. Accused was arrested, after preparing Ext.P1 mahazar. _Crl.Appeal No.587 of 2004 -:6:-_ Independent witness present there attested Ext.P1. He also affixed label in MO.1. Accused and witness present there affixed signature in the label. Ext.P2 is the Arrest Memo. Though they were cross examined at length, he admitted that there was no label in MO.1 at the time of examination and he never took any sample from MO.1. He has also not prepared any forwarding Note. He is not aware, who took sample and who sent the sample to the Chemical Examiner's Laboratory. PW2 is the Excise Officer who accompanied PW1 to support the evidence and he also admitted that no sample was taken at the place of occurrence. He identified MO1. PW3 is the another Preventive Officer of the Excise Range Office, Adoor, who deposed that PW1 produced the appellant along with MO1 and Exts.P1 and P2. On the basis of that, he registered a crime and Ext.P3 is the occurrence report. The appellant was produced before court as per Ext.P4 Remand Application. This witness also admitted that he has not taken any sample from MO1. Analysing the oral testimony of PWs. 1 to 3, it is clear that the Detecting _Crl.Appeal No.587 of 2004 -:7:-_ ## Officer never took sample from MO1. 8. In this context, I have considered whether there is any independent corroboration to the alleged seizure. Prosecution examined PWs.4 and 5 to prove, the attestation of Ext.P1 Seizure Mahazar. Their evidence shows that they never signed in Ext.P1 mahazar and there was no sampling at the time of seizure. 9. PW.6 completed the investigation and laid charge before the court. He prepared Ext.P5 Property List and produced it before the court. He prepared another request for sending the sample to the Forensic Sciences Laboratory through court. The sample was examined in the Chemical Examiner's Laboratory and issued Ext.P6 Certificate. Ext.P6 shows that 32.11% by volume of ethyl alcohol was detected in the sample. A close scrutiny of evidence, it is clear that mere oral evidence with regard to the arrest alone is not sufficient to fasten _Crl.Appeal No.587 of 2004 -:8:-_ criminal liability in an abkari case. The prosecution has to establish that MO1 was seized from the possession of the appellant and it contained arrack. Unless and until such evidence is not there, a conviction is unsustainable under the Abkari Act. It is the primary duty of the prosecution to prove that they took sample from the seized article and sealed it either at the time of seizure or took sample as stated under the Abkari Act. In the absence of such evidence, the suggestion made by the Public Prosecutor that the sample was taken by the court itself is rejected. It means that no sample was taken by the Investigating Officer or the Detecting Officer. ## 10. This Court in **Ravi v. State of Kerala** ( 2011 (3) KLT 353) in paragraph 13, held as follows: _“13. It is difficult for us to believe that PW4 had produced the properties on 25.08.1997 and the Thondy Section Clerk refused to receive the properties on the ground that he was too busy. Even assuming that such a thing happened, we would have expected the prosecution to examine the Thondy Section Clerk to substantiate the above explanation. For reasons best known to the prosecution the Thondy Section Clerk was not examined. If so, it cannot be assumed that the property was in the safe custody of PW4 until their production before Court after 16 days. There is the possibility that the properties would have been tampered with. 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_ _Crl.Appeal No.587 of 2004 -:9:-_ _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.”_ 11. If proper sampling is not made, there is every possibility of tampering of the seized article. Prosecution has to prove that the arrack seized from the appellant was ultimately produced before the Chemical Examiner's Laboratory in a tamper proof condition. 12. There is no satisfactory evidence to connect the appellant with the alleged offence. If that be the position, the appellant is entitled to get the benefit of doubt. Therefore the conviction and sentence passed by the Additional Sessions Judge under Section 8(1) and (2) of the Abkari Act is unsustainable in law. In the result, the conviction and sentence passed by _Crl.Appeal No.587 of 2004 -:10:-_ the Additional Sessions Judge (Adhoc-I) Pathanamthitta, under Section 8(1) and (2) of the Abkari Act are set aside and the accused is acquitted and set at liberty. This appeal is allowed. _Sd/-_ **P.D.RAJAN, JUDGE** AVS