Gopalakrishnan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 17TH DAY OF FEBRUARY 2016/28TH MAGHA, 1937 CRL.A.No. 837 of 2006 -------------------------- AGAINST THE JUDGMENT IN SC 61/2005 of ADDL. SESSIONS COURT (ADHOC)III, PATHANAMTHITTA CP 91/2004 of JUDICIAL FIRST CLASS MAGISTRATE'S COURT,THIRUVALLA ## APPELLANT/ACCUSED: ------------------------------------------ GOPALAKRISHNAN, S/O.KUNJU PANICKEN, CHARUPULATH, OTHERA, KIZHAKKU MURI ERAVIPEROOR VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT/COMPLAINANT: ---------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMRT. LILLY LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl. A. No. 837 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 17[th] day of February, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-III, Pathanamthitta, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo simple imprisonment for one year and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo simple imprisonment for two months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. CRA 837/2006 2 3. The prosecution case is briefly stated as follows: PW1, the Excise Inspector, Excise Range Office, Thiruvalla, and his party were on patrol at about 8.30 a.m. on 4.10.2001. While so, PW1 received information that arrack was being sold on the road in front of the house of Pookalathu Unni. Therefore, the excise party reached that place when the appellant was seen carrying a one litre plastic bottle in his right hand. Seeing the excise party, the appellant attempted to flee away. But, the excise party stopped him there. On examining the bottle carried by the appellant, 550 ml. of arrack was found in it. Since the appellant committed an offence under the Abkari Act, he was arrested by PW1 preparing Ext.P2 Arrest Memo. The bottle containing arrack was seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. He has drawn 200 ml. of arrack as sample in a 375 ml. bottle from the bulk contained in the plastic bottle. Both the bottles were sealed. Thereafter, PW1 and his party reached the CRA 837/2006 3 Excise Range Office, Thiruvalla, with the appellant, properties and the records and registered Crime No.28 of 2001 of that Range Office in respect of the occurrence. Ext.P3 is the Crime and Occurrence Report thus prepared by PW1. The appellant, properties and the records were produced before the Judicial First Class Magistrate's Court, Thiruvalla. Ext.P4 is the Remand Report. Ext.P5 is the List of Property. Ext.P6 is a copy of the Forwarding Note. Ext.P8 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. The investigation of the case was conducted by PW4. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Pathanamthitta, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-III, CRA 837/2006 4 Pathanamthitta. The court below framed a charge against the appellant alleging the offence under Section 8(1) and (2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P8 and MO.1 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(1) and (2) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the case of the prosecution that the appellant was found in possession of about 550 ml.of arrack in a bottle at about 8.30 a.m. on 4.10.2001. He was arrested then and there and the contraband was seized under Ext.P1 Seizure CRA 837/2006 5 Mahazar. It is also their case that PW1 had drawn a sample of 200 ml. of arrack in a 375 ml. bottle from the bulk of the arrack and both the sample and the bottle containing arrack were sealed. It is noted in Ext.P1 Seizure Mahazar that they were so sealed. The contraband along with the sample was produced before the court describing them in Ext.P5 List of Property. Ext.P5 also shows that the sample as well as the bottle containing the bulk were sealed. PW1 and PW2, the Preventive Officer claimed to have accompanied PW1 at the time of detecting the offence, have deposed also that the bottles were so sealed. 6. Ext.P8 is the Certificate of Chemical Analysis. It is reported in this document that ethyl alcohol was detected in the sample and the sample of liquid contained 25.23% by volume of ethyl alcohol. It is also stated in Ext.P8 that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was provided? Was it the seal of the court or the sample of the seal affixed CRA 837/2006 6 on the sample bottle by PW1? Ext.P6 is a copy of the Forwarding Note submitted before the court for sending sample for subjecting it to chemical analysis. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext.P6. Whether the sample seal was affixed on the original of Ext.P6 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext.P6, it has to be presumed that such sample seal was not affixed on the original Forwarding Note unless proved otherwise. A copy of the Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evident from the contents of the form of the Forwarding Note itself. They include the quantity and description of the sample drawn from the bulk of the contraband, details of the case and the space for providing the sample impression of the seal affixed on the sample taken from the bulk of the contraband. Therefore, CRA 837/2006 7 as already stated, the absence of sample seal in the space provided in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal is not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution. In view of these facts, there is no assurance that the sample of the contraband allegedly seized by PW1 from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the sample bottle is provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the sample taken from the bulk allegedly seized from the appellant in this case. 7. This Court in **Rajamma v. State of Kerala (2014** **(1) KLT 506)** has held as follows : - “..........The investigating officer has also CRA 837/2006 8 deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” A Division Bench of this Court in **Ravi v. State of Kerala** **(2011(3)KLT 353)** has held that the prosecution can CRA 837/2006 9 succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, in the case on hand, Ext.P8 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 8. The alleged occurrence in this case had taken place on 4.10.2001. PW4 has conducted the investigation of the case. He joined the Excise Range Office, Thiruvalla, only in December, 2002. Thereafter only he has conducted the investigation of the case. The statements of witnesses produced along with the Final Report do not show the date of questioning the witnesses. The reason for the delay that CRA 837/2006 10 occurred in commencing and conducting the investigation of the case was not explained by PW4 or by any other official witnesses examined in this case. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as the investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Subsection (2) of Section 173 of Cr.P.C. to the Magistrate concerned. This mandate of the statute was ignored by the Investigating Agency in this case. What was the reason? No explanation is there. 9. Ext.P8 Certificate of Chemical Analysis dated 9.10.2002 had been received by the court on 29.1.2003. The Investigating Agency should have submitted the Final Report before the court immediately after the receipt of Ext.P8. But, after completing the investigation, the Final Report reached the court only on 7.9.2004. The inordinate delay thus occurred in conducting investigation and CRA 837/2006 11 submitting Final Report before the court is fatal to the prosecution in the facts and circumstances of the case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780).** The right to a speedy trial is constitutionally as well as statutorily guaranteed right. The speedy trial includes speedy investigation also. [See **Pankaj Kumar v. State of Maharashtra(AIR 2008 SC 3077)]** . In the case on hand, such a right to speedy trial has been infringed by the inordinate delay that occurred in conducting the investigation of the case and submitting the Final Report before the court. 10. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence alleged against him. 11. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is CRA 837/2006 12 acquitted of the offence under Section 8(1) and (2) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks True copy P.S. (Hr.Gr.)To Judge CRA 837/2006 13