Divakaran v. State of Kerala

Crl.A.No.924/2007 1 ## _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. 924 OF 2007_ _AGAINST THE ORDER/JUDGMENT IN SC 301/2002 OF ADDITIONAL DISTRICT COURT (ADHOC), MAVELIKKARA_ ## _APPELLANT/S:_ _DIVAKARAN, AGED 52 YEARS, S/O.KUNJUKUNJU, THOTTUKARA THEKKATHIL, VALLIKUNNAM MURI, VALLIKUNNAM VILLAGE, MAVELIKKARA._ _BY ADV SRI.RASHEED C.NOORANAD_ ## _RESPONDENT/S:_ _STATE OF KERALA REP. BY THE EXCISE INSPECTOR MAVELIKKARA RANGE,, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM._ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ Crl.A.No.924/2007 2 ## **JUDGMENT** The appellant is the accused in S.C.No.301 of 2002 on the file of the Additional District and Sessions Judge, Fast Track (Ad Hoc), Mavelikkara. The aforesaid case arises from Crime No.34 of 2000 of Mavelikkara Excise Range, which was registered against the appellant/accused herein under Section 55 (a) & 8(1) and (2) of the Abkari Act. 2. The prosecution case is that, on 29.03.2000 at 7 pm while the Excise Inspector, Excise Range Office, Mavelikkara and his party were on patrol duty in the Vallikkunnam Village, and when reached Vallikkunnam Muri, received information from reliable sources that the appellant herein is keeping illicit arrack in his possession. Based on the said information, he conducted a search inside house No.134, Thottukara Thekkathil House, Ward No.XI, Vallikkunnam Panchayat, during the course of which, the appellant was found with 5 litres of illicit arrack in five-litre plastic cannas from the kitchen of the house. In Crl.A.No.924/2007 3 addition to that, another plastic cannas, having a capacity of 35 litres, containing a liquid with a smell of wash, was also recovered from the vicinity of the house. The appellant was arrested, and articles were seized based on the same. Based on the aforesaid crime, an investigation was conducted and a final report was submitted before the Judicial First Class Magistrate Court, Mavelikkara, where it was taken into the files as C.P.No.17 of 2002. After completing the legal formalities, the matter was committed to the Sessions Court, Alappuzha. Later, it was made over to the Additional District and Sessions Judge, Fast Track (Ad Hoc), Mavelikkara, where it was tried as S.C.No.301 of 2002. 3. In support of the prosecution case, PWs 1 to PW5 were examined, and Exts.P1 to P9 were marked and MO1 and MO2 were identified. After the closure of prosecution evidence, the appellant was examined under Section 313 Cr.P.C., and incriminating materials brought out during the course of the trial were put to him. He denied the same and pleaded innocence. After evaluating the materials available on Crl.A.No.924/2007 4 record, the Sessions Court arrived at the conclusion that the appellant is guilty of the offences punishable under Section 55 (a) and 8(1) (2) of the Kerala Abkari Act. Based on the aforesaid finding, the appellant was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- for the offences punishable under Section 55 (a) & 8 (1) (2) of the Kerala Abkari Act. It was also ordered that in case of default in making the payment of fine, he shall undergo rigorous imprisonment for a further period of one year. This order of conviction and consequential sentence is under challenge in this appeal. 4. Heard Sri.Rasheed C.Nooranad, learned counsel for the appellant and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State. 5. The primary contention put forward by the learned counsel for the appellant is regarding the failure on the part of the prosecution in proving that the articles seized from the possession of the appellant were subjected to chemical analysis. In support of the said contention, it is pointed out that, Ext.P1 seizure mahazar does not contain the description of the seal or Crl.A.No.924/2007 5 impression of sample seal, which is claimed to have been affixed on the sample when it was drawn at the time of seizure. In addition to the above, it was also pointed out that Ext.P8 forwarding note does not contain the name of the Excise guard through whom the articles were forwarded for chemical analysis. In such circumstances, it was contended that the prosecution failed to establish the tamper-proof condition of the samples claimed to have drawn from the liquid allegedly seized from the appellant’s possession. 6. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. It is pointed out that the evidence of PW1, PW2 and PW5 coupled with the documentary evidence such as Ext.P1 mahazar, Ext.P2 search memo, Ext.P3 arrest memo and Ext.P9 chemical analysis report would clearly establish the guilt of the accused. According to the learned Public Prosecutor, the aforesaid evidence is sufficient to conclude that the appellant is guilty of the offences alleged against him and no interference in the Crl.A.No.924/2007 6 order of conviction passed by the learned Sessions Judge is warranted. 7. When I examine the evidence available on record, it can be seen that the prosecution mainly relies upon the evidence of PW1 and PW2, the Excise Inspector who detected the offence and the Excise guard who were present along with PW1 respectively. Their evidence is that upon getting the information, they conducted a search in the residential building of the appellant herein. During such search, it was found that the appellant has kept in his possession a plastic cannas having a capacity of 5 litres containing illicit arrack. Another plastic cannas having a capacity of 35 litres with a smell of wash was also recovered from the premises. The articles mentioned above were found in the residential building of the appellant. PW3 and PW4, who are the independent witnesses and attestors of the mahazar, turned hostile to the prosecution. PW5 is the officer who conducted the investigation and submitted the final report before the court concerned. These are the materials Crl.A.No.924/2007 7 based on which the prosecution seeks for conviction of the appellant herein. 8. When I examine the aforesaid aspects, the first aspect noticeable is that even though the number and address of the building from which the articles were recovered, are mentioned in the mahazer, absolutely no documents were produced to establish the ownership and possession of the appellant for the same. No documents issued by the local selfgovernment authorities or by the Revenue Authorities pointing out the ownership and possession of the appellant over the building in question are produced. In such circumstances, the same causes serious doubt in the prosecution case. Apart from the above, another illegality that is relevant in this regard is the lack of description of the seal in the mahazar as the impression of the same thereon. In **Moothedath Sivadasan & Another v. State of Kerala [2010(3) KLT 471]** , it was held that the absence of seal on the seizure mahazar and the lack of description thereof in the same is a severe lacuna on 8 Crl.A.No.924/2007 the part of the prosecution case. The prosecution must establish that the sample which was drawn from the articles seized from the accused was kept in safe custody, produced before the court and later made available for chemical analysis in tamper-proof condition. To establish the aforesaid aspect, the description of the seal should be mentioned in seizure mahazar, or the same should contain the impression of the said seal, which is lacking in this case. This is yet another aspect which creates a shadow of doubt on the part of the prosecution. 9. Another illegality pointed out is regarding the nonmentioning of the name of Excise Guard through whom the articles were forwarded for chemical analysis from the court. Even though Ext.P9 chemical analysis report contain the name of the guard, Ext.P8 forwarding note does not contain the same. In **Kumaran P. v. State of Kerala and Another [2016(5) KHC 632]** , this Court has held that in the absence of the name of the Excise Guard, through whom the articles were forwarded for chemical analysis the Thondi Clerk of the court concerned have to be examined before the court. In this case, 9 Crl.A.No.924/2007 no such exercise has been conducted and this is yet another aspect that enables the appellant to get the benefit of doubt. 10. In **Vijay Pandey v. State of Uttar Pradesh [AIR 2019 SC 3569]** , it was held that mere production of a chemical analysis report is not sufficient to establish the guilt of the accused that he was in possession of the contraband articles. To establish the same, the prosecution must prove each and every sequence of events, right from the seizure of articles until it reaches the hands of the chemical analyst. To be precise, the prosecution has to relate the articles seized with the sample subjected to chemical analysis with the contraband article seized from the possession of the accused. While considering the aforesaid aspects, in the materials available on record, lack of description of seal in Ext.P1 mahazar coupled with the failure in mentioning the name of the Excise Guard through whom the sample was forwarded for chemical analysis are crucial matters adversely affecting the prosecution case. It is a well settled position of law that since offences under the Abkari Act attract punishment of imprisonment up to ten years, strict compliance 10 Crl.A.No.924/2007 of legal formalities has to be insisted (See Baburaj v. State of Kerala [2021 (6) KHC 92]. In such circumstances, I find merit in the appeal and interference warranted in the Sessions Court's finding. In the result, this appeal is allowed. The judgment passed by the Additional District and Sessions Judge Fast Track (Ad Hoc), Mavelikkara in S.C.No.301 of 2002 on 3.05.2007 is hereby set aside. The Appellant is found not guilty, and he is acquitted of all the charges. His bail bond shall stand canceled. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/10.3.22