Chandran @ Balachandran S/O Vasudevan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 3RD DAY OF FEBRUARY 2016/14TH MAGHA, 1937 CRL.A.No. 295 of 2008 -------------------------- AGAINST THE JUDGMENT IN SC 1137/2005 of ADDL.SESSIONS COURT (ADHOC) III, TRIVANDRUM . C.C. NO. 126 OF 2004 OF JUDICIAL FIRST CLASS MAGISTRATE-I, ATTINGAL APPELLANT/ACCUSED: ---------------------------------------- CHANDRAN @ BALACHANDRAN S/O. VASUDEVAN, THODIYIL VEEDU, KOTTAPPURAM DESOM SARKKARA VILLAGE, CHIRAYINKEEZHU TALUK. BY ADV. SRI.P.M.HABEEB RESPONDENT: ---------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM (CRIME NO.27 OF 2002 OF CHIRAYINKEEZHU EXCISE RANGE) BY PUBLIC PROSECUTOR SMT. LILLY LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BABU MATHEW P. JOSEPH, J. = = = == = = = = = = = = = = = = = = Crl.A. No. 295 of 2008 = = = = = = = = = = = = = = = = = = = Dated this the 3[rd] day of February, 2016 ## JUDGMENT The appellant was convicted by the Additional Sessions Court (Ad hoc)-III, Thiruvananthapuram, for the offence under Section 55(g)of the Abkari Act. He was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo imprisonment for one year. 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. 3. The prosecution case is briefly stated as follows: PW2, the Preventive Officer, Excise Range Office, Chirayinkeezhu, and his party were on patrol at Manjadimoodu at about 6.30 p.m. on 11.8.2002. While so, PW2 received reliable information that the CRA 295/2008 2 appellant was selling arrack. Soon PW2 and his party, after sending a search memo to the court, reached the house of the appellant. The appellant was present there. PW2 and his party searched the house. During such search, a big 75 litre aluminium vessel and other vessels and utensils used for manufacturing arrack were found in that house. On examining the contents of that big aluminium vessel, full of wash used for distilling arrack was found in it. Since the appellant has committed offences under the Abkari Act, he was arrested by PW2 preparing Ext.P4 Arrest Memo. Ext.P5 is the Arrest Notice. PW2 has drawn 500 ml. of wash as sample in a 750 ml. bottle from the bulk contained in the big aluminium vessel. Rest of the wash contained in the vessel was destroyed. The sample bottle was sealed. The vessels and the utensils found there and the sample bottle were seized by PW2 under Ext.P1 Seizure Mahazar in the presence of witnesses. Ext.P3 is the Search List. Thereafter, PW2 and his party reached the Excise Range office, Chirayinkeezhu, with the appellant, properties and the records and handed over them to PW4, the Excise Inspector of that Range Office. PW4 registered Crime No. 27 of 2002 of that Range Office in respect of the occurrence. CRA 295/2008 3 Ext.P6 is the Crime and Occurrence report thus prepared by PW4. He has produced the appellant and the properties along with the records before the Judicial First Class Magistrate's Court-I, Attingal. Ext.P7 is the List of Property and Ext.P8 is a copy of the Forwarding Note. The investigation of the case was conducted by PW5, the Excise Inspector, Excise Range Office, Chirayinkeezhu. He has obtained Ext.P9 Ownership Certificate in respect of the house where the search was conducted, from the Secretary, Chirayinkeezhu Grama Panchayat. He has questioned the witnesses and recorded their statements. Ext.P10 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. MOs.1 to 5 are the vessels and utensils seized by PW2 from the place of occurrence. PW5 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 made over to the Additional Sessions Court (Ad hoc)-III, Thiruvananthapuram. The court below framed a charge against the appellant alleging the CRA 295/2008 4 offence under Section 55(g) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P10 and MOs. 1 to 5 on their side. The appellant was examined under Section 313 of Cr.P.C. and recorded his statements. The defence has examined DW1 on its side. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(g) 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 in possession of wash and the vessels and utensils used for manufacturing arrack at about 6.30 p.m. on 11.8.2002 and PW2 has seized them. It is also their case that PW2 has drawn 500 ml. of wash in a 750 ml. bottle from the bulk of wash contained in MO.1 vessel and that sample bottle was sealed. PW2, the Detecting Officer, and PW3, the Excise Preventive Officer who claimed to have accompanied PW2 at the time of detecting the offence, have deposed before the court that the sample bottle was so sealed. But, in Ext.P3 CRA 295/2008 5 Search List and in Ext.P7 List of Property, the sample bottle was not described as sealed. 6. It is reported in Ext.P10 Certificate of Chemical Analysis that ethyl alcohol was detected in the sample. It is also certified in this document that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was so provided? Was it the seal of the court or the sample of the seal affixed on the sample bottle by PW2? Ext.P8 is a copy of the Forwarding Note submitted before the court for sending sample for subjecting it to chemical analysis. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext.P8. Whether the sample seal was affixed on the original of Ext.P8 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext.P8, it has to be presumed that the 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 CRA 295/2008 6 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, 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 is not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such a presumption has not been rebutted by the prosecution. The matter does not end there. 7. Ext.P1 Seizure Mahazar does not contain the impression of the seal claimed to have been affixed by PW2 on the sample. PW2 specifically admitted that he had not produced a specimen seal of the seal affixed on the sample bottle before the court. The other official witnesses examined have no case that the specimen seal has been separately produced before the court for the purpose of comparison by the Chemical Examiner. In view of these facts, there is no assurance that the sample of the contraband allegedly seized by PW2 from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an CRA 295/2008 7 assurance is possible only when the sample of the seal affixed on the sample 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. 8. This Court in Rajamma v. State of Kerala (2014 (1) KLT 506) has held as follows : “..........The 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 CRA 295/2008 8 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 (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.P10 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 9. One more aspect also has to be considered here. It is the case of the prosecution that the properties including CRA 295/2008 9 the sample were produced before the court on 11.8.2002 itself. The sample bottle is described as item 5 in Ext.P7 List of Property. It can be seen from this document that these properties reached the court on 11.8.2002. On 13.8.2002, as could be seen from Ext.P7, the office of the court has made a submission before the learned Magistrate to the effect that there was no space in the property room for keeping the properties and hence orders may be passed for keeping them in the police station (mistakenly noted as police station instead of excise office). Learned Magistrate allowed that submission on that day itself. Therefore, the properties so produced on 11.8.2002 including the sample were ordered to be returned by order dated 13.8.2002 of the learned Magistrate. There is no dispute with regard to the fact that the properties were, accordingly, taken back by the excise official. If that be so, another question arises. When those properties were again produced before the court by the Investigating Agency? Under whose custody those CRA 295/2008 10 properties were kept during the period from 13.8.2002 till they were produced again before the court? No answers are forthcoming from the prosecution. 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 facts and circumstances of the case on hand also, the appellant is entitled to such a benefit. 10. The occurrence, according to the prosecution, has CRA 295/2008 11 taken place on 11.8.2002. The investigation of the case was conducted by PW5, the Excise Inspector, Chirayinkeezhu. He has questioned the witnesses on 7.7.2003 and 17.7.2003. After completing the investigation, the Final Report was filed before the court on 20.11.2004. The reason for the delay thus occurred in conducting and completing the investigation was not explained by PW5 or by any other official witnesses before the court. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as the investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Subsection (2) of Section 173 of Cr.P.C. to the Magistrate concerned. This mandate of the statute was not complied with by the investigating agency in this case. What was the reason? No explanation was forthcoming from the prosecution. 11. Exhibit P10 Certificate of Chemical Analysis dated CRA 295/2008 12 12.6.2003 had been received by the court on 8.7.2003. Therefore, the Investigating Agency should have submitted the Final Report before the court immediately after the receipt of Ext.P10. But it took about an year thereafter for commencing the investigation by PW5. After investigation, the Final Report was filed before the court only on 20.11.2004 ie. more than one year and 4 months after the receipt of Ext. P10 by the court. The inordinate delay thus occurred in conducting investigation and submitting Final Report before the court is fatal to the prosecution in the facts and circumstances of this case. This view is strengthened by the decision of this Court in Surendran v. State of Kerala (2013 (3) KHC 780). 12. The right to a speedy trial is constitutionally as well as statutorily guaranteed right. The speedy trial includes speedy investigation also. [See Pankaj Kumar v. State of Maharashtra(AIR 2008 SC 3077)]. In the case on hand, such a right to speedy trial has been infringed by the inordinate CRA 295/2008 13 delay that occurred in conducting the investigation of the case and submitting the Final Report before the court. PW1 was cited and examined as an independent occurrence witness. He did not support the prosecution version of occurrence. The excise officials, PWs. 2 and 3, supported the prosecution case. But, their evidence is not free from contradictions. The omissions in the statement given by PW3 to the Investigating Officer proved through PW5, render the evidence given by PW3 not reliable. When all these facts are considered, this Court is of the view that the appellant is entitled, at least, to the benefit of doubt. 13. 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. 14. 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 55(g) of the Abkari CRA 295/2008 14 Act. He is set at liberty. The bail bond executed by him shall stand cancelled. The amounts, if any, deposited by 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 295/2008 15