Gangadharan s/o Ayappan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941** ## **CRL.A.No.586 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 294/2006 OF ADDITIONAL DISTRICT COURT (ADHOC), KOTTAYAM** ## **APPELLANT/1st ACCUSED:** **GANGADHARAN S/O AYAPPAN, AGED 56 YEARS, KOYIPURATHU HOUSE, KURICHY, CHANGANACHERRY, KOTTAYAM DISTRICT.** **BY ADVS. SRI.SIBY CHENAPPADY SRI.C.JOSEPH JOHNY** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. (FOR CIRCLE, INSPECTOR, CHANGANACHERRY EXCISE RANGE).** ## **OTHER PRESENT:** ## **SR.PP. SRI.D.CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2020, THE COURT ON 27-01-2020 DELIVERED THE FOLLOWING:** Crl.A.586/2007 2 ## **JUDGMENT** First accused in S.C.No.294 of 2006 of the Court of Sessions, Kottayam aggrieved by the conviction and sentence imposed on him for offences punishable under section 8(2) and 55(g) of the Kerala Abkari Act has approached this Court. 2. The prosecution alleged that, on 12.05.2004 at about 4.30p.m., first accused was found in possession of 60 litres of arrack and 160 litres of wash. The raw materials intended for manufacturing arrack and the utensils for distilling the arrack kept concealed at his house in Kurichi Grama Panchayath and that in the building belonging to his wife who was the second accused were also recovered. The accused were intercepted at their house, samples were drawn and investigation was completed. Final report was laid and the husband faced the trial as accused No.1 for offences punishable under sections 8(2) and 55(g) of the Abkari Act. Second accused faced trial for offence punishable under section 61 of the Kerala Abkari Act. 3. On the side of the prosecution, they examined PWs.1 to 9 and marked Exts.P1 to P10. Third party document was marked as Ext.X1. MO1 series to MO9 were marked. On the side of the defence, there was no oral evidence, but Ext.D1 was marked. Court below, on the basis of the available materials, found the first accused guilty, convicted and Crl.A.586/2007 3 sentenced him to undergo rigorous imprisonment for three years and to pay fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for six months for offence punishable under section 8(2), r/w 55(g) of the Abkari Act. The second accused was found not guilty and was acquitted. 4. Aggrieved by the above conviction and sentence, accused has preferred this appeal. Heard the learned counsel for the appellant and learned Public Prosecutor. 5. The prosecution essentially relied on the oral testimony of PW1, who was the Excise Inspector of the concerned range. His version was sought to be corroborated by the prosecution by examining PWs.4 and 5 who were stated to be the witnesses to the search, seizure and sampling. Both the above witnesses turned hostile and did not support the prosecution case in any manner. 6. PW1 in his evidence deposed that, while working as the Excise Inspector on 12.05.2004 at about 3.30p.m. and conducting his regular patrol duty, he got information that the first accused was distilling arrack at his house and shop. They proceeded to his house. From the house No.2/596, 25 litre jar with arrack was found concealed. In another room, 11 plastic jars having 15 litres each capacity were also recovered. Each contained 10 litres of wash. They proceeded to the adjacent building No.2/598. From there, two aluminium jars with capacity of 30 and 35 litres respectively were recovered. It was allegedly meant for distilling Crl.A.586/2007 4 arrack. Three sacks containing raw materials allegedly meant for distilling arrack were recovered. In a syntex tank kept in the property, wash was found kept stored. A 200 litre barrel and other utensils for distilling arrack were also recovered. These were identified as Ext.MO1 to MO9. PW1 deposed that the first accused was present at the house. Thereafter, samples were separated from the main contraband items. Wash was destroyed at the spot. Samples were sealed, labelled, affixed and accused was arrested. They were taken to excise office and Ext.P4 crime and occurrence report was prepared. Ext.P1, copy of the search memo and Ext.P2 mahazar were prepared contemporaneous with the search and seizure. Ext.P3 series were the search lists. Ext.P5 was the property list. 7. Prosecution also relied on the evidence of PW2 who was the Panchayath Secretary. She deposed in terms of Ext.P6 ownership certificate issued by her. Her version indicates that, two buildings belonged to the first accused and the third building was in the name of his mother. PW3 was the Village Officer of the Kurichi Village who prepared Ext.P7 scene plan. PW6 was the investigating officer who was the Circle Inspector of Excise who conducted the investigation. PW7 Excise Inspector laid the charge. PW9 was another excise guard who was examined to support the prosecution case. Crl.A.586/2007 5 8. The prosecution essentially relied on the oral testimony of PW1 and sought corroboration from the contemporaneous documents which were Exts.P1, P2 and P3. Though PW4 claimed to be the independent witness, he did not support the prosecution case in any manner. PW5 was a local person, who was arrayed as the witness to the recovery. Though he admitted his signature in Ext.P2, he did not support the prosecution case in any manner. 9. According to the learned counsel for the accused, prosecution thoroughly failed to prove that the buildings belonged to the accused. PW7 had admitted that the main buildings belonged to the first accused and building No.2/598 belonged to the mother. The evidence of PW2 coupled with Ext.P6 show that, house No.2/596 and 2/597 were in the ownership of the first accused. Building No.2/598 stood in the name of the mother of the first accused. PW2 in his evidence deposed that, Ext.P6 was issued as per the building assessment register. 10. The defence sought to demolish the evidence of PW2 and Ext.P6 by relying on Ext.D1 the electoral identity card. It showed that accused was residing in house No.2/174. Relying on it, learned counsel for the accused contended that, in the light of Ext.D1, case of the prosecution that the accused was the owner of house No.2/596 and 2/597 and that, he was residing in that house with his family cannot be sustained. I am not much impressed by this contention. It is true that in Crl.A.586/2007 6 Ext.D1, residential address is shown as No.2/174. However, it is seen issued in the year 1998, whereas, incident occurred in 2004. Further, Ext.D1 by itself is not sufficient to displace the version of PW2 along with Ext.P6. On the other hand, further evidence of available witnesses indicate that the first accused was available at the spot at the time of search and seizure. Being an instance of spot arrest, the first accused has to explain his presence at the time of search and seizure. Further, even the independent witnesses have referred to the disputed building as the house of the first accused. On the above materials, I am inclined to hold that, prosecution succeeded in proving that the accused was in ownership and possession of the building from where the contraband articles were recovered. 11. One of the main contention set up by the learned counsel for the accused was that, Ext.P4 crime and occurrence report was prepared on the strength of Ext.P2 mahazar. It was contended by the learned counsel that, Ext.P2 was not signed by PW1 and no witness was examined to prove Ext.P2. It was contended that, Ext.P2 was hence not admitted in evidence and cannot be relied on by the prosecution. Though PW9 had signed Ext.P2, he did not tender evidence touching on Ext.P2. Consequently, Ext.P4 crime and occurrence report was not legally sustainable and no prosecution was sustainable as against the first accused, it was contended. Crl.A.586/2007 7 12. This contention does not appear to be sustainable for more reasons than one. It seems that, PW1 has prepared Ext.P2. It was marked through him. He had generally deposed touching upon Ext.P2. However, in the light of the fact that, Ext.P2 was shown to PW1 and it was admitted by him and marked through him, even without further reference to the contents of PW2, the prosecution was competent to rely on the above document. 13. It was contended by the learned counsel for the accused that, there was substantial delay in the production of the contraband before the court below, forwarding it to the FSL which cast substantial doubt on the prosecution case. The recovery was on 12.05.2004. Records reveal that the crime was registered on 13.05.2004 and the contraband articles along with Ext.P2 and accused were produced in Court on 13.05.2004. Samples were thereafter forwarded to the chemical analysis lab through PW9 and Ext.P10 chemical analysis report obtained. It clearly showed that the sample contained Ethyl alcohol. Prosecution mainly relied on the evidence of PW9, the thondi clerk through whom Ext.X1 was marked. PW8 deposed that, contraband item Nos.12 to 15 were received by his predecessor. It was thereafter entrusted to PW9 on 22.05.2004 for being taken to the chemical analysis lab. This is evidenced by Ext.X1 which was the copy of the relevant register evidencing the entrustment of PW9. In cross examination, PW9 admitted that, item Nos.1 to 11 were received by Crl.A.586/2007 8 another excise guard on 13.05.2004. 14. PW9 the Excise Guard, in his evidence acknowledged that, he had received the sample from Court on 22.05.2004. It was entrusted to the chemcial analysis lab on 24.05.2004. Till that date, it was in his custody. Ext.P10 report indicates that the samples were received by the FSL in a sealed condition and the seals were intact. 15. This being the materials placed by the prosecution, learned counsel for the accused vehemently attacked the prosecution case on the ground that the crucial link evidence to establish that the samples which were allegedly taken at the spot, reached the Court without tampering and that, from the Court it reached the FSL without any interpolation was missing. There are sufficient evidence on record to establish that, samples were drawn at the spot, sealed and had reached the Court without considerable delay. Corresponding records also establish that when the samples reached the FSL, the seals were intact. But the crucial question is what were the seals affixed on the samples, which were found to be intact by the chemical analysis lab. It is pertinent to note that the forwarding note which was the crucial link evidence was not produced and marked in Court. Prosecution could not explain why the forwarding note was not produced. There is absolutely no evidence as to the seal that was affixed on the samples at the spot and that, the same seal was found intact by the FSL when they received the sample. To that extent, Crl.A.586/2007 9 ## crucial link evidence is absent. 16. The above issue has been considered by this Court in a catena of decisions. In **Ali v. State of Kerala (2001 KHC 421)** question arose about the authenticity of the sample that reached the laboratory. It was held that, if there was doubt regarding the sealing, accused was entitled for the benefit of doubt. The Court on facts found that, there was discrepancy regarding the exact seals that were affixed on the samples. In **Narayani v. Excise Inspector (2002 KHC 863)** the Court held that, when there was no evidence to prove the proper custody of the residue and sample, it may not be a case of tampering with the sample. It was held that if the prosecution fails to prove that the residue and samples were kept in proper custody till it was produced in custody, tampering cannot be ruled out. In **Rajamma v. State of Kerala (2014(1) KLJ 624)** , it was held that, the absence of seal on material objects was likely to cast doubt on the prosecution case. It was held that, mere arrest of the accused with the material object was not sufficient to establish that, accused has committed the offence. In the absence of evidence to show that the chemical analysis report related to the same sample seized, benefit of it should enure to the benefit of the accused, it was held. 17. In **Achuthan v. The State of Kerala (ILR 2016(2) Kerala 145)** it was held that, merely because the chemical analysis report showed that the seal on the bottle was intact and tallied with the sample Crl.A.586/2007 10 seals provided, that alone was not sufficient to come to a conclusion that, there was no possibility of tampering and the same article had reached the Court. It was held that the specimen seal in question should be provided so as to enable the Court to satisfy the genuineness of the articles. 18. In **Pushkaran v. State of Kerala (MANU/KE/3276/2018)** this Court found that, forwarding note was not produced in the case. Following the above legal proposition, this Court held that, copy of the forwarding note produced in Court must be proved in evidence and it should contain specimen seal affixed on the sample. 19. This legal proposition clearly indicates the duty of prosecution to produce in Court, the forwarding note with the impression of sample seal and to establish in Court that the samples collected were sealed and it remained intact till it reached the Court. In the absence of the forwarding note, which should essentially contain the sample seal, I am inclined to hold that, prosecution has failed to establish the crucial link evidence between the search, seizure and Ext.P10 chemical analysis report. Consequently, I am inclined to give the benefit of doubt to the accused, notwithstanding the vehement submission of the learned counsel for the prosecution that, huge quantity of contraband was recovered from the accused. This aspect has not been considered by the court below. Crl.A.586/2007 11 In the result, appeal is allowed. The conviction and sentence imposed by the court below is set aside and the accused is acquitted. The bail bond executed stands discharged. **Sd/-** Sbna **SUNIL THOMAS JUDGE**