CRL.A. Nos. 443 & 445 of 2004 (Kerala High Court)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 26TH DAY OF NOVEMBER 2014/5TH AGRAHAYANA, 1936 CRL.A.No. 443 of 2004 (C) -------------------------AGAINST THE JUDGMENT IN SC 112/2001 of ADDL.SESSIOINS JUDGE (ADHOC-I), KASARAGOD APPELLANT(S)/ACCUSED NO.1:: --------------------------------- N.RAJAN, S/O.NARAYANAN ALAYIL DESAM, MADIKAI VILLAGE. BY ADVS.SRI.RAHUL SASI SMT.NEETHU PREM RESPONDENT(S)/COMPLAINANT & STATE:: ----------------------------------------------- ## 1. THE EXCISE INSPECTOR NILESHWAR EXCISE RANGE. ## 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-11-2014, ALONG WITH CRA. 445/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR, J. ========================== Crl.Appeal Nos.443 & 445 OF 2004 ==========================** Dated this the 26[th] day of November, 2014 ## **JUDGMENT** These appeals are directed against the judgment of conviction passed by the Court of Additional Sessions Judge (Ad hoc)-I, Kasaragod in S.C.No.112 of 2001. The former appeal has been filed by the first accused therein who faced the trial for the offence punishable under section 64(A) of the Abkari Act and the latter appeal has been filed by accused Nos.2 and 3 therein who were tried for offence under section 8(1) punishable under section 8(2) of the Abkari Act. The appellant in the former appeal was found guilty under section 64(A) of the Abkari Act and upon conviction thereunder, he was sentenced to pay a fine of `25,000/- and in default to pay the amount of fine, he was ordered to undergo rigorous imprisonment for two months. The appellants in the latter appeal on their conviction for the offence under section 8(1) of the Act were sentenced to undergo **Crl.A.443 & 445/04** 2 rigorous imprisonment for two years each and to pay a fine of `1,00,000/- each. In default of payment of fine, they were ordered to undergo simple imprisonment for a further period of six months. 2.The case of the prosecution is as follows:- On 7.4.1999, at about 10 p.m, the accused persons were found carrying illicit arrack of about 40 litres in a rubber tube having 4 ft. length and 2 ft. width in an autorickshaw bearing No.KL-14A 7526 driven by first accused at Maithadom Karakkode road junction in Ambalathara-Pundottu road in Madikai village. After complying with the mandatory procedures, the sample was collected and sample bottle and the rubber tube carrying the residue were sealed and labelled. After arresting the appellants along with seized articles, PW1 produced them before PW3 and subsequently, PW3 prepared Ext.P3 crime and occurrence report and the sample was sent along with Ext.P4 forwarding note and after chemical analysis Ext.P5 report was obtained. Thereupon, final report was filed before the Court of Judicial First Class Magistrate-II, **Crl.A.443 & 445/04** 3 Hosdurg by PW4. The case was then committed to Sessions Court, Kasaragod. The case was then made over to the Court of the Assistant Sessions Judge, Hosdurg and then, it was withdrawn and transferred to the Court of Additional Sessions Judge (Ad hoc-I), Kasaragod for trial and disposal. 3.After hearing the accused and the learned Additional Public Prosecutor, charge under sections 8(1) and 64(A) of the Abkkari Act was framed against the accused persons and it was read over and explained to them. They denied the charge and pleaded not guilty and claimed to be tried. To prove the charge prosecution examined PWs 1 to 4 and got marked Exts.P1 to P5 and identified MO1. After the closure of the prosecution evidence, the appellants were examined under section 313 of the Code of Criminal Procedure and the appellants denied all the incriminating circumstances put to them. Finding that the appellants herein are not entitled to be acquitted under section 232, Cr.P.C, they were asked to enter on their defence. **Crl.A.443 & 445/04** 4 However, the appellants did not adduce any evidence. It was after evaluating the evidence that the trial court found the appellant in Crl.A.No.443 of 2004 guilty under section 64(A) of the Abkari Act and the appellants in Cr.A.No.445 of 2004 guilty under section 8(1) of the Abkari Act. Consequently, they were convicted and sentenced as aforesaid. Hence, these appeals. 4.I have heard the learned counsel for the appellants and also the learned Public Prosecutor. 5.The learned counsel for the appellants contended that it is the utter, perverse appreciation of the evidence on record by the learned Sessions Judge that resulted in the conviction of the appellants and in fact, the evidence on record are inconclusive to establish the charge against the appellants. It is further submitted that there was inordinate delay in the matter of production of the property list before the court and even the residue was not produced before the court. The **Crl.A.443 & 445/04** 5 prosecution has also failed to establish that the sample drawn from the contraband liquor was in safe custody till it reached the chemical anaylist through different hands in tamper proof condition, it is further contended. Above all, the prosecution has failed to establish that the material objects were properly sealed and labelled and that they were kept in tact and in safe custody from 7.4.1999 till 12.4.1999. The contraband article along with the property list were produced before the court only on 12.4.1999 though the alleged detection was on 7.4.1999 and no explanation whatsoever was offered by the prosecution as to why the contraband articles were not produced before the court forthwith or at least the particulars of the seized articles were sent to the court forthwith. The learned Public Prosecutor contended that the sample was taken from the contraband liquid after following the prescribed procedures and the sample along with the residue and the mahazar were forwarded to court on 12.4.1999 and there was no undue delay in production of the articles and property list before the court. Further, it is submitted that the **Crl.A.443 & 445/04** 6 prosecution has proved MO1 and the bottle in which the sample was taken from the contraband liquid were sealed and labelled in accordance with the procedures and the sample had reached the analyst for chemical analysis in a tamper proof condition as can be seen from Ext.P5. It is further contended that the appellants did not dispute their presence in the place of occurrence and also of the fact that autorickshaw in question was seized and there was not even a suggestion from the part of the accused to the effect that they had no complicity in the case. Having considered the contentions and going through the evidence on record, I am of the considered view that the entire aspects have to be considered in the light of the evidence on record. 6.PW1 was the then Circle Inspector, Excise Enforcement and Anti Narcotic Special Squad and he detected the offence. He would depose that immediately prior to the seizure of the autorickshaw involved in the case on hand, he intercepted and seized another **Crl.A.443 & 445/04** 7 autorickshaw and 10 litres of arrack were found from it. He deposed that the road vicinity in the place concerned is about 500 metres. According to him, on seeing the excise party, the accused attempted to take away the vehicle from there and the suspicious move made himself and his party to intercept the vehicle. PW1 further deposed that about 25 persons were gathered on the spot and upon inspection, MO1 rubber tube was kept in the lap of accused Nos.2 and 3 and they were sitting in the rear seat of the autorickshaw. When the rubber tube was opened and the liquid contained therein was smelt and tasted it was identified as illicit arrack of about 40 litres. As per PW1, from out it, 300 ml was drawn in a bottle having a capacity of 375 ml and thereafter, the bottle containing the sample and the rubber tube with the residue were sealed and labelled and the appellants/accused persons were arrested from the spot. The seizure was effected under Ext.P1 mahazar. PW1 would further depose that the contraband liquor and accused Nos.1 to 3 were brought to excise office before PW3. PW2 Narayanan is the attesting witness to Ext.P1 seizure mahazar and **Crl.A.443 & 445/04** 8 he admitted his signature in Ext.P1 mahazar. PW3 who was the then Excise Inspector attached to Excise Range, Nileshwar, upon production of the accused and the seized article before him, registered Crime No.7 of 1999 against the accused for the offences under sections 8(1) and 64 (A) of the Abkari Act. He identified MO1 rubber tube. Ext.P4 is the forwarding note and Ext.P5 is the chemical analysis report of the sample sent for analysis through court. Ext.P5 report would reveal the ethyl alcohol content of the sample as 44.25% by volume. PW4 Excise Inspector, Nileshwar Excise Range conducted the investigation and filed final report. It was after appreciating such evidence that the learned Sessions Judge found that the prosecution had succeeded in establishing the commission of offence under section 64(A) of the Abkari Act by the first accused and commission of offence under section 8(1) punishable under section 8 (2) of the Abkari Act by accused Nos.2 and 3. It was found that the first accused did not take any reasonable and necessary precautions for the use of the autorickshaw for illegal activities in terms of the **Crl.A.443 & 445/04** 9 provisions under section 64(A). It was also found in the aforesaid circumstances that the only inference that could be gathered from the evidence on records is that the transportation of liquor in his vehicle, by accused Nos.2 and 3 was with the knowledge of the first accused. As regards accused Nos.2 and 3, it was found that they could not elicit anything from the official witnesses and the evidence of PWs 1, 3 and 4 are cogent, convincing and consistent to bring home their guilt. 7.True that PW1 deposed to the effect that he had detected the offence on 7.4.1999. According to him, he had to intercept the autorickshaw in question on sensing suspicion in the manner in which first accused attempted to take away the vehicle on seeing the excise party when they signalled to stop the vehicle. According to PW1, thereupon, the autorickshaw was stopped and they inspected the autorickshaw. Accused Nos.2 and 3 were sitting on the rear seat of the autorickshaw and MO1 rubber tube containing 40 litres of arrack was found in their lap. The autorickshaw and MO1 tube were seized under **Crl.A.443 & 445/04** 10 Ext.P1 mahazar and from out of it, 300 ml of the liquid was taken in a bottle having a capacity of 375 ml and after sealing and labelling the bottle and the tube, they were produced along with the accused persons before PW3. According to the prosecution, the incident allegedly occurred at 10 p.m on 7.4.1999. I have carefully gone through the evidence of PWs 3 and 4. However, it is not brought out by the prosecution as to when the contraband article or the property list were produced before the court. At the same time, records would reveal that MO1 together with the property list was produced before the court only on 12.4.1999. The prosecution has not explained why despite the seizure of those articles and preparation of the memo and also the property list they were not produced before the court forthwith or at least on the next day. The records though not marked in this case would reveal that subsequently the contraband liquor contained in MO1 tube was returned to the investigating officer for keeping it in safe custody and later, as per memo dated 18.11.2003 tube was produced before the Judicial First Class Magistrate-II, **Crl.A.443 & 445/04** 11 Nileshwar and subsequently, the property list along with the tube was received by the trial court on 2.12.2003. Going by the settled position of law, the prosecution is having duty to explain the delay, if any, occured in the matter of production of contraband articles and the property list before the court and also to produce the residue. No serious attempt was made by the prosecution to establish that those procedures were duly complied with in this case. I have already adverted to the position that despite the alleged seizure of the contraband liquid on 7.4.1999, it was produced before the court only on 12.4.1999 along with the sample and the mahazar. After receiving the contraband liquid contained in MO1 for keeping it in safe custody, only MO1 was returned to the court during the time when trial was conducted and in fact it was produced before the Judicial First Class Magistrate-II only on 18.11.2003. In the property list thus received in the court, there is an endorsement to the effect that the contents in item No.1 which is MO1 is seen lost due to leakage. The report to that effect filed by the Excise Inspector, Nileshwar was also submitted **Crl.A.443 & 445/04** 12 along with the list. However, this was not legally brought on record by the prosecution. In fact, a careful scanning of the evidence in this case would reveal that the prosecution has not attempted to establish that the residue was properly produced before the court without any delay and that thereafter it was returned for keeping in safe custody and by the time it was sought to be produced before the court during the trial, owing to leakage, contents in MO1 had been lost. The failure on the part of the prosecution in not bringing those aspects legally in evidence cannot be said to be a mere omission as in the light of the decision of this Court in **Damodaran C. v. Station House Officer [2007(4) KHC 936]** and the decision of the Hon'ble Apex Court in **Narayana Velichappada v. Sub Inspector of Police [2007 (4) KHC 748]** in order to have a successful prosecution and to bring conviction for the accused it is the duty of the prosecution to show that the residue or the list was produced before the court forthwith. Going by the case of the prosecution, MO1 is a tube containing 40 litres of arrack and therefore when it was sought to be proved at the **Crl.A.443 & 445/04** 13 time of trial, if the contents were lost, the prosecution should have explained as to how it was lost. Though the prosecution was under an obligation to establish that the residue was produced before the court and it was returned for keeping in safe custody and thereafter the contents were lost not owing to any lapse or laches from the part of the authorities and in fact, the loss was solely owing to leakage the prosecution has not established all those facts. It is obvious that the residue was not produced before the court forthwith. Even if it is taken that it was produced before the court, the records would reveal that it was produced before the court only on 12.4.1999 though it was allegedly seized on 7.4.1999. Though the delay is of only five days, the prosecution was under an obligation to explain how the delay occurred to avert any suspicion and to establish that during those days it was kept in tact and was in safe custody. True that going by the circulars on the subject, the investigating officer is entitled to keep in safe custody of seized articles and then to produce them before the court within a reasonable time. Then an explanation has to be offered. **Crl.A.443 & 445/04** 14 In this case, the very fact that it was produced only on 12.4.1999 was not taken into consideration and needless to say that it is so occurred due to the fact the prosecution has not brought those facts on record. Evidently, there was no explanation whatsoever for the delay. Nonexplanation for the failure to produce the contraband article or at least the list forthwith is a matter which should have been viewed seriously. The evidence of official witnesses PWs 1, 3 and 4 would not reveal that they have established that the sample drawn from the contraband liquid contained in MO1 and MO1 with the residue were properly sealed and labelled. It is also the obligation of the prosecution to establish that it was sealed and labels were affixed on the sample as also on the tube containing the residue. Such aspects were not properly established before the court. The prosecution cannot escape from the liability to prove those crucial and relevant facts contending that no serious challenge was made by the defence in that regard. There cannot be any doubt with respect to the position that even if such facts were not seriously challenged by the defence, the onus **Crl.A.443 & 445/04** 15 probandi was on the prosecution to bring conviction to the accused that it was the seized article drawn from the contraband liquid found in the possession of the accused persons which was taken and produced before the court concerned after following the procedures and thereafter it was the same article which reached the hands of the chemical analyst. True that in this case, Ext.P6 would reveal that from the court contraband article reached the public analyst for analysis in tamper proof condition. No evidence was adduced by the prosecution to establish that it was the sample which was collected from the contraband liquid found in the possession of the accused persons that was brought to court and it was produced before the court in a tamper proof condition. The learned counsel for the appellants contended that the provisions under section 53A of the Abkari Act was not complied with for destroying the residue and the failure to comply with the provisions under section 53A is also fatal to the prosecution. Per contra, the learned Public Prosecutor contended that it is nobody's case that the residue was destroyed. The learned counsel for the **Crl.A.443 & 445/04** 16 appellants contended that this is not a case wherein seized liquor was disposed of by the authorised officer. It is contended that only in cases where the liquor, intoxicating drug or any article after seizure were disposed of by the authorised officer, an inventory is to be prepared and the procedures have to be followed in terms of section 53A. True that it is nobody's case that the seized liquor or intoxicating drug or any article was disposed of by the authorised officer referred in section 57B of the Abkari Act. In such circumstances, the failure to bring on record the inventory to show compliance with the provisions under section 53A cannot be said to be fatal to the prosecution. At the same time, as noticed hereinbefore, no explanation whatsoever has been offered by the prosecution as to what happened to the residue. MO1 produced at the time of its identification was only a tube sans the liquid in it. Going by the prosecution case, at the time of seizure, MO1 contained 40 litres of arrack. The learned Public Prosecutor contended that it was thereafter returned for keeping in safe custody and the property list was **Crl.A.443 & 445/04** 17 produced before the court subsequently in 2003, precisely on 18.11.2003. As stated earlier, that fact was not legally brought on record. So also, there was absolute absence of any explanation as to what happened to the residue. For a successful prosecution, the prosecution was under an obligation to produce the residue and when the residue was not available for identification the prosecution has to explain as to what happened to it. Those aspects were virtually withheld by the prosecution to the prejudice of the accused. The lapses or laches on the part of the prosecution is definitely fatal to the prosecution and those aspects were not at all considered by the trial court. In view of the failure on the part of the prosecution to explain what happened to the residue or to show that it was properly produced before the court forthwith the appellants are justified in contending that those facts have to be taken as fatal defects on the part of the prosecution. Though the prosecution case is that on 12.4.1999 the residue was once produced before the court and it was lost only while it was in custody after being returned from the court, no evidence was **Crl.A.443 & 445/04** 18 adduced to support the same. The absence of explanations on the aforesaid aspects is sufficient to grant benefit of doubt to the appellants. As noticed hereinbefore, in a case where the charge is one under section 8(1) of the Abkari Act, the prosecution has to establish that the samples seized reached the chemical analyst in tamper proof condition. When that was not properly discharged by the prosecution, the benefit of doubt should go to the appellants/accused. In the decision in **Ravi v. State of Kerala [2011(3) KHC 121],** a Division Bench of this Court had occasion to consider whether the delay in producing the seized article before the court is fatal to the prosecution. After referring to section 34 of the Abkari Act, this Court held that production of the articles seized under section 34 before the Magistrate forthwith is a statutory mandate. At any rate, immediately on seizure, the factum of seizure should be informed the court forthwith in accordance with law. In this case, the report as also the contraband articles reached the court only on 12.4.1999. No evidence was adduced to establish that from 7.4.1999 to 12.4.1999 the articles **Crl.A.443 & 445/04** 19 were kept in tact and in safe custody. When that fact was not properly established the chance of any manipulation could not be ruled out especially in the absence of explanation. In such circumstances, it is fatal to the prosecution and the benefit of doubt has to be given to the appellants. In view of the circumstances expatiated above, I am of the view that the finding of the trial court that the prosecution has succeeded in proving the charge against the accused/appellants conclusively cannot be upheld and it is not legally sustainable in the light of the evidence on record. In such circumstances, these appeals are allowed. The judgment of conviction passed by the Court of Additional Sessions Judge (Ad hoc)-I, Kasaragod in S.C.No.112 of 2001 is set aside and the appellants are found not guilty and they are acquitted of the charges. Bail bonds of the appellants stand cancelled. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **spc/** **Crl.A.443 & 445/04** 20 **C.T. RAVIKUMAR, J.** **Crl.A.443 & 445/04** 21 **JUDGMENT September, 2010**