Imbichimon v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 CRL.A.No. 632 of 2003() ----------------------- S.C. NO. 48/2000 of ADDL. DISTRICT & SESSIONS COURT (ADHOC), FAST TRACK COURT -I, MANJERI. .................... APPELLANT/1ST ACCUSED:- ------------------------------- IMBICHIMON, S/O. KUNHIMOHAMMED, KAKKACHINTE PURAKKAL HOUSE, PACHATTIRI AMSOM, PARAVANNA DESOM. BY ADV. MR. K.P.MUJEEB RESPONDENTS/COMPLAINANT:- ------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. MR. B. JAYASOORYA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRA. NO. 632/2003 ORDER ON CRL. M.P. NO. 3874/2003 IN CRA. NO. 632/2003 ## DISMISSED 19.10.2009 sd/- **V. RAMKUMAR, JUDGE.** ## V. RAMKUMAR , J. -------------------------------------------------Crl. Appeal No. 632 of 2003 ---------------------------------------------------Dated this the 19[th] day of October, 2009. ## **JUDGMENT** The 1[st] accused in S.C. No. 48 of 2000 on the file of the Additional Sessions Court, Fast Track – I, Manjeri is the appellant in this appeal. He challenges the conviction entered and the sentence passed against him for offences punishable under Sections 55(b) and 55(g) of the Abkari Act. 2. The case of the prosecution as unravelled by the oral and documentary evidence in the case is as follows:- In the night of 16.10.1997, PW3, who was the Sub Inspector of Police, Thirur got information to the effect that in the uninhabited house of one deceased Thappa situated to the west of the Government Hospital, Vakkad, arrack was being illicitly distilled. Thereupon, PW3 along with his police party consisting of PW6, a Sub Inspector and PW1, a Constable proceeded to the said spot on 17.10.1997 at Crl. Appeal No. 632/2003 : 2 : about 3 p.m. When they reached the said house, two persons were found illicitly distilling arrack in the kitchen area of the said house. Seeing the police party, one of them (A1) made good his escape. The other who was apprehended by PW6 after a hot chase is A2. Three samples were drawn from the illicitly distiled arrack found in a large jerry can. Three samples were taken from the large quantity of wash. The illicit arrack, wash, the jerry cans, vessels and apparatus used for distillation etc. along with the sample bottles were packed, sealed and seized as per Ext.P1 seizure mahazar prepared by PW3 from the site itself. A2 was arrested. The properties and the seizure documents along with A2 were then taken to the Police Station from where a case was registered as Crime No. 430 of 1997 of Thirur Police Station. The properties were produced before the Judicial First Class Magistrate, Thirur on 24.10.1997 and were received in court as item No. 538 of 1997. The six bottles of samples and one black jerry can Crl. Appeal No. 632/2003 : 3 : allegedly containing illicit arrack were retained in the court and the remaining properties were returned to the Sub Inspector for safe custody. Ext.P3 is the property list evidencing the production of the above properties and return of the bulk quantities of liquor for safe custody. PW5 who was the Head Constable of Thirur Police Station, conducted the investigation and prepared Ext.P5 Scene Mahazar. PW4 who was the Sub Inspector of Thirur and who succeeded PW3, laid the charge before court. Ext.P4 chemical report was marked through him. PW2 Raman, who is the care taker of the house in question at Vakkad, was examined to prove that after the death of Thappa, nobody was residing in the said house. MOs I to XV are the properties marked during trial excluding the six sample bottles and one black plastic can allegedly containing four litres of arrack. Ext.P4 is the certificate of chemical analysis which shows that three of the sample bottles allegedly containing arrack were having 44.24% by volume Crl. Appeal No. 632/2003 : 4 : of ethyl alcohol and the three of the sample bottles allegedly containing wash were having 10.7%, 10.16% and 10.85% by volume of alcohol and the contents of the plastic jerry can allegedly containing 4 litres of country made arrack was having 44.42% by volume of ethyl alcohol. The prosecution therefore alleges that the two accused persons have thereby committed offences under Sections 55(b) and 55(g) of the Abkari Act. 3. I heard the learned counsel appearing for the appellant and the learned Public Prosecutor. 4. PW1 who is a Police Constable and who accompanied PW3, confessed that they did not have any previous acquaintance with the accused and that A2 alone was arrested from the site. PW3, the detecting officer also confessed that he did not know A1 prior to the occurrence and that his identification of A1 as one of the persons who had made good his escape from the scene is as per the statement of A2. PW3 further confessed that A1 was not Crl. Appeal No. 632/2003 : 5 : identified to him by anybody from the site. The role of PW4, the Sub Inspector who succeeded PW3 was only in laying the charge before court. PW5, the Head Constable only conducted further investigation by questioning the witnesses and preparing Ext.P5 scene mahazar. He has no direct knowledge about the detection. PW6 who was the Sub Inspector and who accompanied PW3 also confessed that he arrested only the 2[nd] accused and he too had no previous acquaintance with A1 and he was seeing A1 for the first time in court. All these witnesses were examined before court towards the end of January, 2003 which is six years after the detection. All of them had admitted that out of the two persons who were found in the house, one of them made good his hurried escape. So they had only a fleeting glimpse of the person who is now claimed to be A1. None of them had any opportunity to interact with A1 so as to remember his features six years thereafter. Hence, the identification of A1 by the prosecution witnesses six years Crl. Appeal No. 632/2003 : 6 : after the occurrence without there being any test identification parade is absolutely valueless. (See **Kanan v. State of Kerala** – AIR 1979 SC 1127) 5. Apart from the fact that there is no acceptable evidence to identify A1 as one of the two persons who were allegedly engaged in illicitly distilling the arrack on 17.10.1997, there is no credible evidence before court to show that the samples which were subjected to chemical analysis as revealed by Ext.P4 certificate are the very same samples which were allegedly drawn by PW3 from the bulk quantities. Even though the detection and seizure were on 17.10.1997, the properties reached the Judicial First Class Magistrate, Thirur only on 24.10.1997. None of the prosecution witnesses has deposed before court that until 24.10.1997, the properties were in their safe custody. No forwarding note or requisition has been produced by the prosecution requesting for sending the samples to the chemical examiner for analysis. It is not known as to who Crl. Appeal No. 632/2003 : 7 : despatched the samples to the chemical examiner. The Thondi Section Clerk who is the custodian of the properties, was not examined. Ext.P4 certificate shows that the samples were despatched as per a letter dated 25.02.1998 of Judicial First Class Magistrate, Thirur. Office copy of the said letter was not produced. When there is no acceptable evidence to show that the samples allegedly drawn by PW3 from the bulk quantities were in safe custody before their production before court after 7 days of their seizure and that there is no credible evidence before court to show as to who despatched the samples to the chemical examiner, it cannot be safely concluded from Ext.P4 report of analysis alone that they pertain to the very same samples allegedly drawn by PW3. Those samples must have changed hands several times to eventually reach the hands of the chemical examiner. When the prosecution has failed to show that the property reached the hands of the chemical examiner in a tamper-proof condition, the result of analysis cannot be Crl. Appeal No. 632/2003 : 8 : used against accused. (See **State of Rajasthan v. Daulat Ram** – AIR 1980 SC 1314, **Valsala v. State of Kerala** – – 1994 (2) KLT 550 and **Sasidharan v. State of Kerala** 2007 (1) KLT 720]. 6. In the light of the aforementioned circumstances, the conviction entered and the sentence passed against the appellant (A1) by the court below overlooking the above circumstances cannot be sustained and are accordingly dislodged. The appellant is found not guilty of the offences punishable under Sections 55(b) and 55(g) of the Abkari Act and is acquitted thereunder. He shall be set at liberty forthwith. Dated this the 19[th] day of October, 2009. ## **V. RAMKUMAR, JUDGE.** rv Crl. Appeal No. 632/2003 : 9 : V. RAMKUMAR, J. **------------------------------------** Crl. Appeal No. 632 of 2003 ---------------------------------------- 19[th] day of October, 2009. Crl. Appeal No. 632/2003 : 10 : JUDGMENT