Jayaprakash v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 13TH DAY OF JULY 2017/22ND ASHADHA, 1939** ## **CRL.A.No. 707 of 2004 (B)** **--------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 277/2001 of ADDITIONAL DISTRICT & SESSIONS COURT (AD-HOC) COURT-I, PATHANAMTHITTA DATED 24-04-2004** **APPELLANT(S)/ACCUSED:: ---------------------** **JAYAPRAKASH, AGED 43 YEARS, S/O. BALAKRISHNAN, KAMALAVILASAM VEEDU,, VIJAYAPURAM KARA, PANDALAM, THEKKEKARA VILLAGE,, ADOOR TALUK, PATHANAMTHITTA.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.TONY MATHEW** **RESPONDENT(S)/COMPLAINANT:: ---------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. PRIYA SHANAVAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **K.P. JYOTHINDRANATH, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.707 of 2004** **- - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of July, 2017** ## **J U D G M E N T** This appeal is preferred against the conviction and sentence dated 24.4.2004 made in SC 277/2001 on the files of the Additional District & Sessions Court (Ad-Hoc) Court-I, Pathanamthitta. The conviction is under 55 (a) of the Abkari Act and the sentence is to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.1 lakh with default simple imprisonment for two years. 2. The facts necessary for consideration of this appeal is as follows: On 13.7.1998 at about 4 pm the Preventive Officer and party attached to Excise Range Office, Adoor, while conducting patrol duty, found the accused with a plastic cannas in his right hand, walking through the road in front of Vijayapuram Government Ayurvedic Hospital in Pandalam Thekkekkara Village. He was intercepted and it was found that the can contained 5 ltrs. of rectified spirit and thereby Crl.A.No.707 of 2004 2 committed an offence under Section 55 (a) of the Abkari Act. He was arrested, contraband was seized, mahazar prepared and a crime was registered at the Excise Office. After investigation charge was filed before the court. Prosecution altogether examined 6 witnesses and Exts.P1 to P8 were marked. MO1 was also seen identified. On the side of the defence, DW1 was examined and Ext.D1 was also marked. After appreciating the evidence, the court below convicted the accused and sentenced as stated above. 3. When the appeal came up for hearing, the learned counsel appearing for the appellant vehemently argued before me that here is a case where the court below convicted the accused without any legal evidence. In support of his submission, it is submitted before me that a curious procedure was seen followed by the prosecution in this case. No sample was lifted from the contraband in the presence of the accused herein. It is the further submission that now the prosecution got a case that some sampling was done from the court on the back of this appellant and Crl.A.No.707 of 2004 3 further no reliable evidence was also adduced in respect of the same. It is the submission made before me that neither the Property Clerk nor any officer who lifted the sample, if any so lifted, examined before the court. It is the further submission that no request for lifting of such a sample is also seen marked before the court. A bald uncorroborated statement of an Excise official that sampling was done from the court will not be sufficient to link the accused with the analysis report. When the link in between the contraband allegedly seized from the possession of the accused and the analysis report is missing, then it can be only said that the prosecution miserably failed to bring out the ingredients of an offence required for a conviction under Section 55 (a) of the Abkari Act. 4. I heard the learned Public Prosecutor, who submitted before me that here is a case where the sample was taken from the court and it was sent for analysis. There is a presumption under Section 114 of the Evidence Act that official acts are done properly. If the appellant got any Crl.A.No.707 of 2004 4 doubt regarding the lifting of the sample, it is the duty of the defence to rebut the presumption available under section 114 of the Evidence Act. The defence examined one Aleyamma John-DW1. But it was only to show that the appellant herein was arrested from a different place. When there is nothing to show that the official witnesses got any grudge against the appellant herein, there is nothing to disbelieve the evidence of the official witnesses. The corollary is that when the detection is proved and when the presumption regarding the official acts are available then it can be only said that the appreciation of the evidence by the court below is proper and correct and an interference by this court is not warranted. 5. In appreciating the evidence, it is relevant to note Rule 17 of the Kerala Chemico-Legal Examination Rules, which deals with miscellaneous examinations. Rule 17 (c) (4)(e) reads thus: “Magistrates and Prohibition Officers shall forward to the Chemical Examiner direct all material Crl.A.No.707 of 2004 5 objects seized in connection with illicit traffic in liquors, intoxicating drugs etc., under the Prohibition Act for the time being in force.” Rule 17 (b) states thus: “In forwarding any miscellaneous article such as mentioned hereinbefore, the Magistrates, Police Officers or Prohibition Officers as the case may be shall follow the instructions laid down in Rules 30 of Section III so far as they may be applicable and shall be careful to include in their letter or advice to the Chemical Examiner information as to the nature and object of the examination required, and to furnish any other information likely to assist the Chemical Examiner in making the required Examination.” As per the said Rule what all things required to be analyzed and found out by the Chemical Examiner shall be addressed to him in the forwarding note. In this case, the sample was forwarded for chemical analysis by the Magistrate. It is an admitted fact that copy of the forwarding note prepared by the Magistrate is not before this court. Surely a suo motu sending of sample for analysis is not contemplated under Crl.A.No.707 of 2004 6 the Rule. If a judicial order for taking the sample was therein, it should have been produced before the court during trial. That is also missing in this case. It is not clear, who took the sample from the contraband, what was the state of the contraband at the time of taking the sample, whether it was sealed as claimed by the prosecution, all these facts are not before the court. Surely, as per the evidence of PW5, the Excise Inspector who deposed before the court that MO1 was sealed and labelled and produced before him by PW1. He identified the property list as Ext.P7. Ext.P7 is the said property list which only says as follows: ©çgÖ¢ 5 ÜßxV çµÞZ æµÞUáK ²øá æÕU ÉïÞØíxßA **í** µKÞØßW æùµí¿ßèËÁí ØíÉßøßxᢠ©çgÖ¢ 5 ÜßxV (sealed). No details of the seal or any other aspect is seen noted therein. As per the decision of this Court in **Krishnan H. v. State [2015 1 KHC 822]** the importance of the sample seal is highlighted. Surely that was a case where the court was dealing with samples. But in this case, when the Crl.A.No.707 of 2004 7 sampling was allegedly done by the court, the contraband reached therein in an untampered manner is also to be proved by the prosecution. That aspect will be missing. The details of the seal is not entered in the thondi list. The evidence of PW1 is that he had made a request for the court to take the sample. It is not seen corroborated by either the copy of the request or with the original request which should be available with the court. It is not marked before the court. In this case when the sample is allegedly taken by the court there should be at least a request to take the sample by the court and there should be a judicial order by the court permitting to take the sample by the court. Further, there should be evidence that sample was actually lifted from the court and was despatched to the analyst. That aspect is missing. The main link in between the chemical analysis report and the alleged contraband is missing in this case. Surely here is a case where spirit seizure is involved. But when the vital aspect is missing, it cannot be said that prosecution succeeded in proving that 8 Crl.A.No.707 of 2004 accused was found in possession of 5 ltrs. of spirit. When such a link is missing, this court can only said that prosecution failed to prove an offence as alleged under Section 55 (a) of the Abkari Act. Under such circumstances, this appeal is allowed setting aside the conviction and sentence imposed against the appellant. The bail bond, if any, executed by the appellant is cancelled and he is set at liberty. Sd/- **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/