Karthikeyan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 22ND DAY OF JANUARY 2016/2ND MAGHA, 1937** **CRL.A.No. 1382 of 2005 ( )** **---------------------------** **AGAINST THE JUDGMENT IN SC 372/2003 of ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-1,ALAPPUZHA DATED 29-07-2005 ( CP 107/2002 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT-II, CHENGANNUR EXCISE RANGE)** ## **APPELLANT/ACCUSED:** **-------------------------** **KARTHIKEYAN, S/O. NANU, MOOTHEDATH PALLATH VEEDU, PERINGALIPURAM VADAKKUM MURI, ENNAKKAD VILLAGE.** **BY ADVS.SRI.JOHN BRITTO SRI.C.A.RAJEEV** ## **RESPONDENT/COMPLAINANT:** **---------------------------** **STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, CHENGANNUR RANGE THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR SRI. N. SURESH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.1382 of 2005 ---------------------------------------------Dated this the 22[nd] day of January, 2016 ## **JUDGMENT** This appeal is preferred against the conviction and sentence in S.C.No.372/2003 of the Additional Sessions Judge, Fast Track Court-I, Alappuzha u/s.8(1) and (2) of the Abkari Act. The charge is that on 4.2.2000 at 6 p.m., the Preventive Officer attached to the Excise Range Office, Chengannur was conducting patrol duty within his jurisdiction. While he was proceeding from Mulavana Junction to Ennakkad, he saw the accused proceeding through the road carrying a bottle containing 750ml of arrack. On seeing the Excise Party, accused tried to escape, at that time the Excise officials intercepted him and seized the arrack. Preventive Officer took 200ml as sample at the place of occurrence and seized the contraband articles, after preparing a Crl.A.No.1382/2005 2 mahazar. Accused was arrested from there, reaching at the Excise Office, registered crime 20/2000 and after completing investigation, Preventive Office, Chengannur laid charge before Judicial First Class Magistrate Court-II, Chengannur from there, the case was committed to Sessions Court, Alappuzha. 2. During trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P4. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He was also heard u/s.232 Cr.P.C. The appellant examined DW1 in support of his defence. The learned Additional Sessions Judge convicted the appellant u/s.8(1) and (2) of the Abkari Act and sentenced to rigorous imprisonment for a period of one year and fine of 1 lakh, in₹ default simple imprisonment for six months. Being aggrieved by that, he preferred this appeal. 3. Heard both sides. The only contention put forward Crl.A.No.1382/2005 3 by the learned counsel for the appellant was that there was no forwarding note in this case. ## 4. This Court in **Rajamma** v. **State of Kerala** [2014(1) KLT 506] held as follows: “But mere arrest of the accused with the material objects is not sufficient to establish that the accused has committed the offence punishable under Section 55 (a) of the Abkari Act. The prosecution has got a further duty to prove that, when the accused was arrested, she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me, there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a forwarding note and submitted before the court for sending the samples for chemical analysis.” 5. However, in view of the above decision, I have examined the detection of the offence and preparation of the forwarding note. The seizure of arrack was made by PW1, the Preventive Officer attached to the Excise Range Office, Chengannur. The evidence of PW1 shows that on 4.2.2000 at 6 p.m., while he was conducting patrol duty and as and when reached near the SNDP Gurumandiram, Mulavana junction, the Crl.A.No.1382/2005 4 appellant was found carrying a bottle of 750ml capacity. On seeing the Excise Party, he became perplexed. PW5 intercepted him and inspected the bottle, in which he detected arrack. PW1 took 200ml as sample and the appellant was arrested. PW5 is also an occurrence witness supported the story stated by PW1. PW5 accompanied PW1 in the patrol duty. He identified the accused before Court. In order to avoid reiteration of the same version, I am not stating the entire oral evidence of PW5. Ext.P1 is the mahazar and MO1 is the balance arrack, after taking sample. 6. The matter may be further analysed on the basis of the evidence of PW2 and PW3. They did not support the case, but they admitted their signature in Ext.P1. PW2 stated that he signed in Ext.P1 at the Excise Office. PW4 deposed that while he was working as Excise Range Inspector, the accused and the contraband articles were produced before him. On the basis of that, he registered a crime and Ext.P2 is Crl.A.No.1382/2005 5 the crime and occurrence report. The seized articles were produced before Court for chemical examination. Ext.P3 is the property list. But no forwarding note is found prepared by PW4 at the time when he produced MO1 and the sample before Court. PW6 questioned the witness and completed the investigation. The sample was examined in the chemical examiner's lab and Ext.P4 is the report. After completing investigation, he laid charge before Court. Anlaysing the oral evidence of official witnesses, it is clear that they arrested the appellant and seized MO1 from him. But, that story stated by the prosecution has to be proved by cogent and convincing evidence. 7. The seizure of MO1 itself is not sufficient to give evidenciary value of Ext.P4 document issued by Joint Chemical Examiner. Therefore, the link between the seizure and sending it for chemical examiner's lab in a bona fide manner has to be proved by the prosecution. Crl.A.No.1382/2005 6 ## 8. This Court in **Ravi** v **State of Kerala** [2011(3) KLT ## 353] held as follows: “It is difficult for us to believe that PW 4 had produced the properties on 25/08/1997 and the Thondy Section Clerk refused to receive the properties on the ground that he was too busy. Even assuming that such a thing happened, we would have expected the prosecution to examine the Thondy Section Clerk to substantiate the above explanation. For reasons best known to the prosecution the Thondy Section Clerk was not examined. If so, it cannot be assumed that the property was in the safe custody of PW 4 until their production before Court after 16 days. There is the possibility that the properties would have been tampered with. The prosecution, in a case of this nature can 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 by change of hands in a tamper-proof condition. (Vide - State of Rajasthan v. Daulath Ram11 and Valsala v. State of Kerala12 No conviction can be entered against the accused in a prosecution as the present one 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 (See - Sathi v. State of Kerala13) and Sasidharan v.State of Keralau. There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW 4. Hence, the result of Ext. P7 Chemical Analysis cannot be applied against the appellant. Therefore, no evidence has been adduced by the prosecution Crl.A.No.1382/2005 7 to show that the sample was drawn properly from the seized article and it was produced before Court with sample seal which was forwarded to the chemical examiner's laboratory in a tamper proof condition. Therefore, the appellant was arrested and seized MO1, which itself is not sufficient to convict under Section 8(1) & (2) of the Abkari Act. In the absence of such proof, the appellant is entitled to get the benefit of doubt. In the result, the conviction and sentence passed by the trial Court u/s.8(1) and (2) of the Abkari Act are set aside and the appellant is acquitted and set at liberty. Criminal appeal is allowed. ## **P.D. RAJAN, JUDGE.** acd Crl.A.No.1382/2005 8 Crl.A.No.1382/2005 9