K. Ashok Kumar v. The Excise Inspector, Kasaragod & State of Kerala

Crl.A.No.1191/2006 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _MONDAY, THE 28[TH] DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943_ _CRL.A NO. 1191 OF 2006_ _AGAINST THE ORDER/JUDGMENT IN SC 284/2001 OF ADDITIONAL_ _DISTRICT COURT (ADHOC), KASARAGOD_ _CP 8/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KASARAGOD APPELLANT/1st ACCUSED:_ _K.ASHOK KUMAR, S/O. KRISHNA PANDIR, ARJAL, KUDLU VILLAGE._ _BY ADV SRI.T.G.RAJENDRAN_ ## _RESPONDENTS/COMPLAINANT & STATE:_ - _1 THE EXCISE INSPECTOR, KASARAGODE._ - _2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM._ ## _SRI.RANJIT GEORGE – PUBLIC PROSECUTOR_ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ Crl.A.No.1191/2006 2 ## **O R D E R** The appellant herein is the 1[st] accused in S.C. No.284/2001 on the file of Additional Sessions Court (Adhoc–I), Kasaragod. The aforesaid case arises from Crime No.29/2000 of Kasargod Excise Range. The aforesaid crime was registered against the appellant for the offence punishable under Section 55(a) of the Abkari Act. 2. The case of the prosecution is as follows: The Preventive Officer of Kasargod Excise Range on 03.06.2000, while on patrolling duty within his Range along with his colleagues received an information that the appellant had stored large quantities of Indian made foreign liquor and arrack in a building. Accordingly after preparing a search memo, an inspection was conducted in the premises and during such inspection, it was found that the appellant who is the 1[st] accused in the aforesaid crime was coming out the house and upon searching the premises, the inspection team Crl.A.No.1191/2006 3 could detect 6000 packets each containing 100 ml. of arrack manufactured in State of Karnataka, 25 plastic cans each containing 35 litres of spirit and 10 cardboard boxes each containing 24 bottles with 375 ml. of Indian Made Foreign Liquor produced in State of Karnataka. Immediately the appellant was arrested and articles were seized. On the basis of the same, crime mentioned above was registered and investigation conducted. After completing the investigation, final report was submitted before the Judicial First Class Magistrate Court, Kasargod, against the appellant and another person, which was taken into file as C.P. No.8/2001. Upon completing the legal formalities, the same was committed to the Sessions Court, Kasargod and later it was made over to the Additional Sessions Court (Adhoc – I), Kasargod, where it was tried as S.C. No.284/2001. 3. In support of the prosecution, PWs 1 to 8 were examined, Exts.P1 to P11 were marked and the material objects 1 to 3 were identified. After closure of the prosecution evidence, the appellant and the 2[nd] accused were examined and questioned under Section 313 Cr.PC. and the incriminating Crl.A.No.1191/2006 4 materials brought out during the course of trial were put to them. They denied the same and pleaded innocence. 4. As defence evidence, they have examined DW1 and Ext.D1 was marked. After examining the materials available on record, the trial court arrived at the conclusion that the appellant is guilty of the offence, whereas the 2[nd] accused was found not guilty. On the basis of the same, the appellant was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- with a default sentence of rigorous imprisonment for a period of one year. This appeal is filed by the appellant challenging the aforesaid order and conviction. 5. Heard Sri.T.G.Rajendran, learned counsel for the appellant and Sri.Ranjit George, learned Public Prosecutor for the State. 6. The learned counsel for the appellant contends that the prosecution failed to establish the guilt of the appellant. It is pointed out that, even though, large quantity of articles were alleged to have been seized from the premises, the same were not produced and marked before the court. Apart from the Crl.A.No.1191/2006 5 above, the prosecution failed to prove that the samples which were subjected to chemical analysis were the same samples drawn from the contraband articles seized from the possession of the appellant. To substantiate the said contention, the learned counsel brought my attention to Ext.P5 seizure mahazar and Ext.P9 forwarding note, both containing no impression of seals affixed on the samples. It is also pointed out that Ext.P5 seizure mahazar also does not contain description of seal claimed to have been affixed on the samples. In addition to the above, it was also submitted that no arrest memo as required was produced, which also goes against the prosecution case. Another contention put forward by the learned counsel is that the arrest and investigation was conducted by an officer who was not competent in this regard. The same was done by the Preventive Officer, who was not authorized to do so as per the notification prevailing at the relevant time. 7. On the other hand, the learned Public Prosecutor contended that the materials relied on by the prosecution are sufficient to hold the appellant guilty of the offences. He Crl.A.No.1191/2006 6 places reliance upon the documents produced by the prosecution to establish his possession over the building from which the articles were seized. He places reliance upon the evidence of the official witnesses coupled with the contemporaneous documents such as seizure mahazar and forwarding note to substantiate the same. By placing reliance upon the same, dismissal of the Criminal Appeal is sought for. 8. When we consider the prosecution case, it can be seen that the basic allegation is that the appellant was found keeping large quantity of arrack manufactured and saleable in the State of Karnataka in the building in the possession of the appellant. In order to substantiate his possession, prosecution examined PW2, the Secretary of the Grama Panchayath concerned, who issued Ext.P1 ownership certificate for the building in question. The same would indicate that the aforesaid building is owned by the mother of the appellant who was examined as PW7. PW7 has clearly deposed that the said building was occupied by the appellant. However, the crucial question that arises here is as to whether the prosecution is successful in establishing the link between the samples Crl.A.No.1191/2006 7 subjected to chemical analysis and the arrack which is allegedly seized from the premises in possession of the appellant. The basic document which is relied upon by the prosecution is Ext.P5 seizure mahazar. On going through the same, it is evident that, the same does not contain the specimen seal claimed to have affixed on the sample at the time of seizure. It also does not contain description of the said seal. In the absence of the specimen seal being affixed on the seizure mahazar or furnishing the descriptions of such seal, it cannot be safely concluded that the sample which was drawn from the articles seized were made available for chemical analysis. In **Moothedath Sivadasan and Another v. State of Kerala [2021(1) KLT 744]** this Court considered the said aspect and it was observed that in the absence of the said details, the case of the prosecution becomes doubtful. 9. Yet another aspect is regarding the lack of seal on the forwarding note. Forwarding note is an important document which indicates forwarding of the samples for chemical analysis. The absence of seal in the forwarding note is yet another lacuna which goes against the prosecution case, Crl.A.No.1191/2006 8 and it, would result in failure on the part of prosecution in establishing the tamper proof condition of the sample, when it was made available for chemical examination. In **Vijay Pandey v. State of Uttarpradesh [AIR 2019 SC 3569]** the Honourable Supreme Court was pleased to observe as follows: "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." 10. **In Rani v. State-Sub Inspector of Police Meppadi [2018(5) KHC 352]** and **Smithesh v. State of Kerala [2019(2) KLT 974],** this Court observed that lack of impression of seal on the forwarding note is crucial to the prosecution case. In such circumstances, the same is a serious lacuna in this case. 11. Another illegality pointed out by the learned counsel for the appellant is relating to the lack of arrest memo. In this case, the crucial aspect which is being relied upon by the Crl.A.No.1191/2006 9 prosecution is the arrest of the appellant along with the contraband articles alleged to have been seized from his possession. Therefore, the presence of the appellant at the relevant time is very crucial and in order to establish his presence and the arrest as claimed by the prosecution, the arrest memo is a crucial document. In **Ramankutty v. Excise** **Inspector, Chelannur Range [2013 (3) KHC 308],** the aforesaid question was considered by this Court and it was held that the absence of the arrest memo is fatal to the prosecution case. In the light of the above, it is not safe to arrive at a conclusion that the appellant is guilty of the offence alleged against him. 12. In such circumstances, considering the above aspects, interference is warranted in the findings entered into by the Sessions Court in this regard. 13. In the result, I find merits in this appeal and accordingly, the order of conviction and imposition of sentence upon the appellant as per judgment dated 16/05/2006 in SC.284 of 2001 passed by the Additional Sessions Court Crl.A.No.1191/2006 10 (Adhoc-I), Kasaragod is hereby set aside. The appellant is found not guilty of and is acquitted of all the charges. His bail bond shall stand canceled and he shall be entitled for release of the deposit of fine, which he had already made consequent to the order of conviction passed by the learned Sessions Judge. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/3.3.22