GOPALAN, S/O AYYAPPAN v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 12TH DAY OF JUNE 2020 / 22ND JYAISHTA, 1942** ## **CRL.A.No.1125 OF 2007** **AGAINST THE JUDGMENT IN SC 814/2005 DATED 31-05-2007 OF ADDITIONAL SESSIONS COURT-II, PALAKKAD** **APPELLANT:- (SOLE ACCUSED)** **GOPALAN, S/O. AYYAPPAN, AGED 55 YEARS ANAPPAYA VEEDU, KULUKKALLUR DESOM,, KULAKKALLUR VILLAGE, OTTAPALAM TALUK,, PALAKKAD DISTRICT.** **BY ADV. SRI.G.SREEKUMAR (CHELUR)** **RESPONDENT:- (COMPLAINANT)** **STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR,, PATTAMBI EXCISE RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.** **SRI SANTHOSH PETER- SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-06-2020, THE COURT ON 12-06-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.1125 OF 2007** **2** ## **R. NARAYANA PISHARADI, J** **-----------------** ----------------------------------- ## **Crl.A. No. 1125 of 2007** ----------------------------------------------------Dated this the 12[th] day of June, 2020 ## **JUDGMENT** The appellant is the accused in the case S.C No. 814/2005 on the file of the Court of the Additional Sessions Judge, Palakkad. 2. The prosecution case is that, on 22.01.1999, at about 18:00 hours, at the road near Perunthalankavu Temple in Kulukkallur Village, PW1 Excise Inspector found the appellant having in his possession a can containing 5.500 litres of arrack. 3. The trial court framed charged against the appellant for the offence punishable under Section 55(a) read with 8(2) of the Abkari Act, 1077. The appellant pleaded not guilty to the offence and claimed to be tried. 4. The prosecution examined PW1 to PW5 and marked Exts.P1 to P8 documents and MO1 material object. No evidence was adduced by the accused. 5. The trial court found the appellant guilty of the offence **CRL.A.No.1125 OF 2007** **3** punishable under Section 55(a) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. 6. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal. 7. Heard the learned counsel for the appellant and also the learned Public Prosecutor. Perused the records. 8. PW1 is the Excise Inspector who detected the offence. He has given evidence regarding the occurrence in detail. 9. PW2 is the Preventive Officer who was in the excise party led by PW1. His evidence corroborates the testimony of PW1 regarding the occurrence. 10. PW3 is one of the independent witnesses examined by the prosecution to prove the occurrence. He denied having seen the incident. 11. PW4 is the other independent witness examined by the prosecution to prove the occurrence. He supported the prosecution case to some extent. He gave evidence that he saw the excise party and the accused at the road and he signed Ext.P3 seizure mahazar. **CRL.A.No.1125 OF 2007** **4** However, he has not given any evidence that he saw the excise party seizing any can containing arrack from the possession of the accused. He has stated on cross-examination that he only saw the accused and the excise officers standing at the road and that he did not see anything else. 12. PW5 is the Excise Inspector who conducted the investigation of the case and filed final report against the accused. 13. Ext.P8 is the chemical examination report received in respect of the sample of liquid which was forwarded for analysis. It shows that the sample of liquid contained 21.03% by volume of ethyl alcohol. 14. At the outset it is to be noted that the trial court has gone wrong in framing charge against the accused for offence punishable under Section 55(a) read with 8(2) of the Abkari Act. The offences punishable under Sections 55(a) and 8(2) of the Abkari Act are distinct and different. However, no prejudice has been caused to the accused by the error committed by the trial court in framing the charge. 15. Learned counsel for the appellant contended that the case against the appellant was fabricated at the instance of a toddy shop contractor by name Jomy. It is contended that there was a quarrel between the appellant and Jomy regarding arrears of salary and **CRL.A.No.1125 OF 2007** **5** thereafter, the accused stopped working for Jomy and on account of that enmity, Jomy has got the appellant involved in a false case by exerting influence over the excise officials. 16. Learned counsel for the appellant also contended that the evidence adduced by the prosecution is not sufficient to prove that the very same sample of liquid taken from the can allegedly seized from the possession of the appellant was forwarded to the laboratory for examination. 17. There is no evidence to find that the case is one foisted upon the appellant at the instance of any person by name Jomy. No evidence was adduced by the appellant to prove that the case is one foisted upon him by the excise officials at the instance of Jomy. Nothing was also brought out during the cross-examination of the prosecution witnesses to find that the aforesaid plea of the appellant is probable. 18. However, there is merit in the contention of the learned counsel for the appellant that the link evidence is not complete and that it cannot be found that Ext.P8 chemical examination report relates to the very same sample which was drawn from the can allegedly seized from the possession of the appellant. 19. There is a specific recital in Ext.P3 seizure mahazar that **CRL.A.No.1125 OF 2007** **6** PW1 took sample of the liquid from the can which was found in the possession of the accused in a bottle and that he sealed the sample bottle and also the can containing the residue of arrack and affixed label on them. There is inconsistency in this regard between the evidence of PW1 and the recitals contained in Ext.P3 seizure mahazar, which is a contemporaneous document prepared by PW1. 20. PW1 has deposed that it was his personal seal which was used for sealing the sample bottle and the can. There is no such recital in Ext.P3 seizure mahazar. The specimen of the seal used by PW1 is not seen affixed also on Ext.P3 mahazar. 21. PW1 has deposed that the label affixed on the can and the sample bottle had his signature and also the accused. Ext.P3 mahazar is silent on this aspect. 22. PW1 has given evidence that, on returning to his office, he registered Ext.P2 crime and occurrence report. The description of the sample bottle and the can given in Ext.P2 report does not show that there was any label, with or without the signature of the accused, on the sample bottle and the can. 23. Ext.P5 is the property list prepared by PW1 for producing the material objects before the court. The description of the sample bottle and the can given in Ext.P5 property list also does not show that **CRL.A.No.1125 OF 2007** **7** there was any label, with or without the signature of the accused, on the can and the sample bottle. 24. Ext.P6 is the copy of the forwarding note prepared and submitted by PW1 for sending the sample for chemical analysis. The description of the sample bottle given in Ext.P6 forwarding note shows that it was sealed and labelled. When the sample bottle produced in the court as per Ext.P5 property list had no label on it, it eludes comprehension how a label happened to be on it when it was forwarded for chemical analysis. 25. As noticed earlier, Ext.P3 seizure mahazar does not reveal what was the nature of the seal used by PW1 for sealing the sample bottle and the can. The specimen of the seal was also not affixed on the seizure mahazar. But, the specimen of the seal is given in Ext.P6 forwarding note. There is no evidence to show that, at the spot of the occurrence, the sample bottle was sealed by using that particular seal. 26. In the above circumstances, there is no assurance that the very same sample which was drawn from the liquid allegedly seized from the possession of the accused was produced before the court and sent for chemical analysis. 27. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** , the Supreme Court has held as follows: **CRL.A.No.1125 OF 2007** **8** "The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related". 28. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 29. The above mentioned vital aspects have not been taken into consideration by the trial court while appreciating the prosecution **CRL.A.No.1125 OF 2007** **9** evidence. In such circumstances, the appellant/accused is entitled to be acquitted. 30. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 55(a) read with 8(2) of the Abkari Act is set aside. The appellant/accused is found not guilty of either the offence punishable under Section 55(a) of the Abkari Act or the offence punishable under Section 8(2) of the Abkari Act and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. ## **Sd/-R. NARAYANA PISHARADI JUDGE** ## **lsn**