Girish and Ratheesh v. State of Kerala

Crl. Appeal No. 1807/2007 : 1 : ## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ## THE HONOURABLE MR. JUSTICE JOHNSON JOHN TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945 CRL.A NO. 1807 OF 2007 AGAINST THE JUDGMENT DATED 26.09.2007 IN SC 860/2003 OF ADDITIONAL DISTRICT COURT (ADHOC), MAVELIKKARA ## APPELLANTS/ACCUSED: - 1 GIRISH, RATHEESH BHAVANAM, KANDIYOOR MURI, MAVELIKARA VILLAGE. - 2 RATHEESH KALLELIL PARAMBIL VEEDU KOTTACKAKOM MURI, MAVELIKARA VILLAGE. BY ADVS. SRI.JOHN BRITTO SRI.C.A.RAJEEV ## RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV. SMT. NIMA JACOB, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.11.2023, THE COURT ON 28.11.2023 DELIVERED THE FOLLOWING: Crl. Appeal No. 1807/2007 : 2 : ## **'CR'** ## **JOHNSON JOHN, J.** --------------------------------------------------------Crl. Appeal No. 1807 of 2007 --------------------------------------------------------Dated this the 28[th] day of November, 2023. ## **JUDGMENT** Accused Nos. 1 and 2 in S.C. No. 860 of 2003 on the file of the Additional District and Sessions Judge, Fast Track (Adhoc), Mavelikkara, preferred this appeal challenging the conviction and sentence imposed on them for the offences punishable under Sections 8(1)(2) and 55(a) of the Kerala Abkari Act. 2. The appellants are convicted and sentenced to undergo rigorous imprisonment for a period of 3 ½ years each and to pay a fine of Rs.1,00,000/- each for the offences punishable under Sections 8(1)(2) and 55(a) of the Kerala Abkari Act and in default to pay the fine, to undergo rigorous imprisonment for a further period one year each. 3. The prosecution case is that on 09.07.2002, at 1.20 hours, the accused persons were found transporting 35 litres of spirit in car bearing registration No. KL 4H/2244 through the PIP canal road at Kollakadavu. The Sub Inspector of Police, Venmony Police Station, intercepted the vehicle and arrested the accused persons and after completing the investigation, final report was filed against the accused persons alleging commission of offences punishable under Crl. Appeal No. 1807/2007 : 3 : Sections 8(1) and (2) and 55(a) of the Kerala Abkari Act before the Judicial First Class Magistrate-II, Chengannur. 4. The learned Magistrate committed the case to the Sessions Court, Alappuzha for trial and disposal and later, the case was made over to Assistant Sessions Court, Mavelikkara and thereafter transferred to the Additional District and Sessions Judge, Fast Track (Adhoc), Mavelikkara. 5. The trial court, after framing charges, examined PWs 1 to 6 and marked Exhibits P1 to P11 and MOs 1 and 2 from the side of the prosecution. From the side of the defence, DW1 was examined. 6. After trial and after hearing both sides, the trial court found the accused persons guilty of the offences punishable under Sections 8(1) and (2) and 55(a) of the Abkari Act and imposed the sentence as aforesaid. 7. Heard Sri. C.A. Rajeev, the learned counsel for the appellants and Smt. Nima Jacob, the learned Public Prosecutor. 8. The learned counsel for the appellants pointed out that the Sub Inspector of Police, who detected the case and conducted investigation, has not given evidence as to the nature of the seal affixed on the contraband alleged to be recovered and the sample bottles and in Exhibit P1 mahazar also, the specimen impression of Crl. Appeal No. 1807/2007 : 4 : the seal used is not affixed and further, there is also nothing in the mahazar regarding the nature of the seal used. 9. The learned counsel for the appellants pointed out that specimen seal impression is not there in Exhibit P7 property list and that there is also delay in forwarding samples to the chemical laboratory. 10. A perusal of the evidence of PW6, the Sub Inspector who detected the offence and conducted the investigation, shows that even though he deposed regarding the occurrence in tune with the prosecution case, his deposition does not contain the relevant aspects regarding the nature of the seal used when he had drawn sample from the contraband seized. In Exhibit P7 property list also, the specimen impression of the seal used is not affixed. 11. It is well settled that the Officer, who had drawn the sample, had to give evidence as to the nature of the seal affixed on the bottle containing the sample and also regarding the nature of the seal used to affix on the seizure mahazar. The Detecting Officer is further required to produce the specimen impression of the seal used before court and he is also required to affix the specimen impression of the seal in the seizure mahazar and property list so as to enable proper comparison to ensure tamper free collection and production of sample before court and the chemical laboratory. Crl. Appeal No. 1807/2007 : 5 : 12. This Court has also held in _**Sasidharan v. State of Kerala**_ [2007(1) KLT 720] that the prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the Chemical Examiner in a fool proof condition, unless the link evidence of actual sampling and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the prosecution cannot be held to have brought home the offence against the appellants. 13. In Exhibit P9, copy of the forwarding note, the name of the Police Constable who is entrusted to hand over the sample to the Chemical Examiner is not seen recorded and a perusal of Exhibit P11 Chemical Analysis report shows that the sample despatched on 16.07.2002 from the court at Chengannur reached the Chemical Examiner’s Laboratory at Thiruvananthapuram only on 17.07.2002 and the prosecution has not examined the thondy clerk of the concerned Magistrate Court or the Police Constable who was entrusted with the sample for producing the same before the Chemical Examiner’s Laboratory to explain the delay. 14. At the time of questioning under Section 313 Cr.P.C., the first accused, apart from denying the incriminating circumstances, stated that on seeing the Sub Inspector pushing his vehicle when it Crl. Appeal No. 1807/2007 : 6 : was break down, he laughed at him and there occurred a quarrel between them and because of that enmity, he was falsely implicated in this case. 15. The learned counsel for the appellants also invited my attention to the evidence of DW1 who deposed that he witnessed the quarrel between the accused persons and the Sub Inspector that occurred in front of a tyre shop at Kandiyoor junction. According to PW1, the reason for the quarrel was that the accused persons laughed at the Sub Inspector. The evidence of PW6 before court is that the first accused was the driver of the vehicle and the other accused was sitting in the back seat. But, the evidence of PW2 Police Constable, who accompanied the Sub Inspector is that the passenger was sitting in the seat on the left side of the driver and a 35 litre can was kept in the back seat at the time of occurrence. 16. As per Exhibit P11 chemical analysis report, the sample of the liquid contained 95.45% by volume of ethyl alcohol. It is further stated in the report that the sample was found to be rectified spirit free from noxious ingredients injurious to health. In the interpretation of ‘arrack’ in Section 3(1)(6A), Indian Made Spirit is excluded and therefore, it can be seen that the conviction for the Crl. Appeal No. 1807/2007 : 7 : offence punishable under Section 8(1) r/w Section 8(2) of the Abkari Act is not sustainable. 17. The absence of impression of specimen seal in the mahazar and property list and non disclosure of the name of the Police Constable in the forwarding note and the delay in producing the sample before the Chemical Examiner’s Laboratory are circumstances to doubt the identity of the sample drawn and the sample sent for chemical analysis. It cannot be disputed that the prosecution is duty bound to prove that there was tamper proof despatch of the sample, to show that the sample taken from the contraband seized from the accused was the sample which reached the hands of the Chemical Examiner. Since the prosecution failed to prove the same, it cannot be held that the link evidence was established. 18. The learned counsel for the appellants also pointed out that serious prejudice is caused to the accused persons, since the Sub Inspector who allegedly detected the offence has conducted the investigation and filed the final report, as it is in evidence that previously there occurred a quarrel between the accused persons and the Sub Inspector. Therefore, on a reappreciation of the evidence available, I find that the prosecution has failed to comply the mandates necessary to ensure tamper proof collection of Crl. Appeal No. 1807/2007 : 8 : sample and adduce satisfactory evidence to prove that there was tamper proof despatch of the sample. In the above circumstances, it is found that the prosecution has not succeeded in proving the case against the accused persons beyond reasonable doubt and therefore, the appellants are entitled for the benefit of doubt and as such, the conviction and sentence imposed by the trial court are liable to be set aside. In the result, the appeal is allowed and the conviction and sentence imposed by the trial court against the appellants/accused persons are set aside and they are acquitted of the offences punishable under Sections 8(1) r/w Section 8(2) and Section 55(a) of the Abkari Act. The bail bond executed by the appellants/accused persons shall stand cancelled and they are set at liberty forthwith. The amount, if any being part of the fine amount deposited by the accused/ appellants by order of this Court, shall be refunded to them. sd/- **JOHNSON JOHN, JUDGE.** Rv