CRL.A. No. 740 of 2007

# IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 CRL.A NO. 740 OF 2007 [AGAINST THE JUDGMENT PASSED IN S.C.NO.397/2002 DATED 13.3.2007 OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE, FAST TRACK (ADHOC), ## MAVELIKKARA] ## APPELLANT/2ND ACCUSED: MANOHARAN, ERICKAL THEKKATHIL, KANICHANALLOOR MURI, CHEPPAD. BY ADV. R.GOPAN ## RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. SRI. SUDHEER GOPALAKRISHNAN, PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.01.2022,, THE COURT ON 8.3.2022 PASSED THE FOLLOWING: CRL.A. No.740 of 2007 2 ## JUDGMENT The appellant herein is the 2[nd] accused in S.C.No.397/2002 on the file of the Additional Sessions Court, Fast Track (Adhoc), Mavelikara. The 1[st] appellant/1[st] accused passed away during the pendency of the trial and accordingly the charge against the 1[st] appellant abated. The aforesaid case arises from Crime No.71/1999 of Karthikappally Excise Range office which was registered against the appellant and another for the offences punishable under Sections 8(1)(2) & 55(b) (g) of the Kerala Abkari Act. 2. The prosecution case is that, on 26.11.1999 at 1 A.M., the Preventive officer of Karthikappally Excise Range office and his party, while on patrol duty passing through Karthikappally taluk, Cheppad Village, Evoor Vadakkumuri and when reached at Pathiyoor- Karipuzha, Ullitta Puncha, Palamood Cheep, the accused persons were found brewing illicit liquor with the help of utensils intended for the said purpose. The accused ## CRL.A. No.740 of 2007 3 were apprehended, articles were seized and produced before the court after registering the crime as aforesaid. Upon completion of investigation, the final report was submitted before the Judicial First Class Magistrate Court,Kayamkulam which was taken into file and numbered as CP No.10/2002. After completing the legal formalities, the case was committed to the Sessions Court and later it was made over to the Additional Sessions Court where it was tried as S.C.No.397/2002. 3. In support of the prosecution case, they have examined PWs.1 to 6, marked Exts.P1 to P11 and identified material objects 1 to 7. After closure of prosecution evidence, accused were examined under section 313 of Cr.PC. and the incriminating materials brought out during the course of trial were put him. He denied the same. No defence evidence was adduced. 4. After considering the materials on record, the Sessions Court arrived at the conclusion that the appellant is guilty of the offences and accordingly, he was convicted and sentenced for three years and to pay a fine of Rs.1,00,000/- for the offence punishable CRL.A. No.740 of 2007 4 under Sections 8(1)(2) & 55(b)(g) of the Abkari Act. It is also ordered that in default of payment of fine, the accused shall undergo rigorous imprisonment for a further period of one year. Challenging the aforesaid conviction and sentence, this appeal is filed. 5. Heard both sides. 6. The prosecution evidence consists of PWs. 1 to 6 in which PWs.1 and 2 are the independent witnesses who have attested Ext.P1 seizure mahazar. Even though both of them have admitted their signature in Ext.P1 seizure mahazar, they deposed that they did not witness any incident in which the accused persons were found brewing illicit liquor. PWs.3 and 4 were the Excise Guard and Preventive Officer respectively of Karthikappally Excise range office who were parties to the Excise team detected the offence. PW4 stated that, on 26.11.1999 at 1 a.m. while they were on patrol duty through Karthikappally taluk, Cheppad village, he found fire at Palamood ‘cheep’ and also felt smell of wash. Immediately, he along with the Excise party reached thereon in a canoe available by the side of CRL.A. No.740 of 2007 5 Karippuzha-Ullitta puncha nilam and found the accused persons manufacturing illicit arrack. On scrutiny, it was found that, the accused persons were possessing hot wash of 50 litres and 750 ml bottle of illicit arrack which was manufactured from the said wash. Immediately the articles were seized in the presence of two witnesses and a seizure mahazar was prepared. It is also stated that from the 50 litres of wash, 500 ml of wash was drawn in a separate bottle as sample and affixed seals thereon. Thereafter, the wash was destroyed in the presence of witnesses. From the illicit arrack seized, 200ml arrack was drawn in another bottle and the same was sealed in the presence of witnesses. Thereafter, the accused were arrested, Exts. P2 and P3 arrest memo were prepared and Exts.P4 and P5 notices of arrest were given to the near relatives of the parties. Thereafter, accused and the articles were produced before the court. PW3 is the Excise Guard who accompanied PW4 Preventive officer while detecting the offence and his evidence is in tune with PW4. CRL.A. No.740 of 2007 6 7. PW5 was the Excise Inspector of Karthikappally Excise Range office who registered the crime. The production of the accused and the contraband articles were made by PW5 before the court. PW6 was the Excise Inspector who completed the investigation and filed charge sheet in this case. These are the materials based on which the prosecution is seeking to establish the offence alleged against the accused and the same was accepted by the trial court which ended up in the order of conviction and sentence, as mentioned above. 8. The crucial point that arises is as to whether the prosecution is successful in establishing the guilt of the accused. In Baburaj v. State of Kerala [2021(6)KHC 92], this Court after placing reliance upon large number of decisions, held that, for the purpose of convicting the accused under the provisions of Abkari Act, strict compliance of statutory provisions have been insisted upon. 9. The Hon’ble Supreme Court in Vijay Pandey v. State of Uttarpradesh [AIR 2019 SC 3569] held that mere production of laboratory report that the samples tested CRL.A. No.740 of 2007 7 was narcotic, cannot be a conclusive proof by itself. The prosecution is to relate the seized sample with that seized from the appellant. In the light of the principles laid down by the Hon’ble Supreme Court in Vijay Pandey’s case (supra), it is absolutely necessary for the prosecution to establish that the chemical analysis report obtained by the prosecution is relating to the sample which was taken from the possession of the accused. In order to establish the same, the prosecution has to establish each and every sequence of events, right from the stage of the seizure of the contraband article until obtaining of chemical analysis report. In this case, when we examine the materials available on record, certain crucial aspects are very much evident. Exhibit P1 is the seizure mahazar by which the contraband articles were seized. Even though it is mentioned in Ext.P1 and also deposed by PWs.3 and 4 that, upon seizure and drawn the samples therefrom, seals were affixed thereon by PW4, the specimen of the said seal is not contained in Ext.P1 seizure mahazar. The description of the nature of seal is also not CRL.A. No.740 of 2007 8 specified in Ext.P1. In Moothedath Sivadasan and Another v. State of Kerala [2021 KHC 3232] , this Court considered the question of the necessity of having the specimen seal on the seizure mahazar and it was held that, in the absence of the same on the seizure mahazar, the prosecution case becomes weaker. 10. In this case, apart from the aforesaid lacuna, there is yet another aspect. As mentioned above, even though the prosecution has a specific case that the articles seized by the Excise were affixed with seals, the material objects produced before the court does not contain any such seal at the time of trial. The explanation offered by the prosecution to the same is Ext.P6 report. The said report would indicate that, the material objects were kept in the office of PW4 as authorized by the court and due to passage of time, the label and the seals affixed thereon got defaced. The impact of lack of label and seal on the material objects at the time of trial was considered by this Court in Unnikrishnan Nair v. State of Kerala [2020(3)KHC 455] and it was observed as follows: ## CRL.A. No.740 of 2007 9 _“12. PW1 and PW4 identified MO1 in the Court as the can containing liquid seized from the possession of the petitioner / accused. Their evidence in that regard lacks credibility. There is a specific recital in Ext.P1 mahazar that PW1 sealed the can which was seized from the accused and that he affixed label on it which contained his signature and also the signature of the witnesses and the accused. The can identified as MO1 by PW1 and PW4 in the Court had no seal or label on it. Every such can would look alike or similar. The occurrence was on 18/07/2002. Final report in the case was filed only on 23/01/2007. PW1 gave evidence before the Court on 28/01/2009 and PW4 gave evidence on 30/01/2009. Identification of the can before the Court by PW1 and PW4, who were testifying before the Court more than six years after the occurrence, without any marks of identification on it, as the very same can seized from the possession of the accused, cannot be accepted as reliable and trustworthy._ _13. It is quite probable and natural that the seal and the labels put on the can may be lost or effaced or damaged during its storage in the Court or the excise office for a long period. However, in the instant case, there are circumstances to show that the can containing the liquid which was seized from the possession of the accused was not the can which was produced before the Court. As noticed earlier, there is a specific recital in Ext.P1 mahazar that PW1 sealed the can which was seized from the accused and that he affixed label bearing his signature and also the signature of the witnesses and the accused on it. PW1 gave evidence also to that effect. He also deposed that he produced the material objects and the documents at the Excise Range Office. PW5 Excise Inspector has given evidence that the articles seized by PW1 and the accused were produced before him and he prepared Ext.P6 crime and occurrence report and he produced the material objects before the Court as per Ext.P7 property list. The description of the can given in Ext.P6 report and Ext.P7 property list does not show that it was sealed or labelled or that there was any seal or any label on it. Therefore, it cannot be found that the very same_ ## CRL.A. No.740 of 2007 10 _can which was seized from the possession of the accused was produced before the Court.”_ Thus, it is evident that the absence of seals on the can as claimed in Ext.P1 mahazar is a serious lacuna in the prosecution case and the lack of the same would make the accused entitled for the benefit of doubt. This is particularly because, it is evident from Ext.P6 that the material objects were kept in the custody of PW4 himself even after production of the same before the court. It is also evident from Ext.P1 that the colour of the can in which the wash was kept is also not specifically mentioned. Therefore, in the absence of any identifying features of the articles including utensils seized from the possession of the appellant herein, it cannot be concluded that the prosecution was successful in proving the offence. 11. Thus, it is evident that the prosecution is not successful in establishing the offence alleged against the appellant. It is to be noticed that the findings entered by the trial court do not contain the CRL.A. No.740 of 2007 11 examination of any of the aspects mentioned above and therefore is only to be set aside. Accordingly, this appeal is allowed. The conviction and sentence imposed upon the appellant herein as per the judgment dated 13.3.2007 in S.C.No.397/2002 by the Additional Sessions Court, Fast Track (Adhoc), Mavelikara are hereby set aside, as the appellant is found not guilty and hence, acquitted from all the charges. Sd/ZIYAD RAHMAN A.A. JUDGE pkk