Kasu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 11TH DAY OF MARCH 2016/21ST PHALGUNA, 1937 CRL.A.No. 2096 of 2006 (F) ------------------------------AGAINST THE JUDGMENT IN SC 788/2005 of ADDL. SESSIONS COURT (ADHOC)II, PALAKKAD DATED 20-09-2006 -------- APPELLANT/ACCUSED: ------------------------- KASU, S/O.CHAMI, AGED 50 YEARS, KANIMANGALAM, KIZHAKKENCHERRY II VILLAGE. BY ADV. SRI.BRIJESH MOHAN RESPONDENT/COMPLAINANT:: ---------------------------------- STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR MS.LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.2096 of 2006 -----------------------------------------------Dated this the 11[th] day of March, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-II, Palakkad, for the offence under Section 55(g) read with Section 8(2) of the Abkari Act. He was sentenced to undergo simple imprisonment for three years and to pay a fine of 1 lakh and, in default of payment₹ of fine, to undergo simple imprisonment for six months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW5, the Sub Inspector of Police, Mangalamdam Police Station, and his party were on patrol at different places at about 6.30 p.m. on 11-07-2001. While so, PW5 received Crl. Appeal No.2096 of 2006 -2- reliable information that the appellant was keeping things used for manufacturing arrack in his house near Kanimangalam Junction. Therefore, after preparing Ext.P6 Search Memo and sending the same to the court, PW5 and his party reached the house of the appellant. The police party conducted a search in that house in the presence of witnesses. During search, a 20 litre clay-pot containing about 10 litres of wash used for manufacturing arrack was found in the kitchen of that house. PW5 had drawn one and a half litres each of wash in two 2 litre white jerrycans as samples and sealed and seized them under Ext.P3 Search List in the presence of witnesses. Rest of the wash contained in the clay-pot was destroyed. The appellant was arrested by PW5 preparing Ext.P4 Arrest Memo. Thereafter, PW5 and his party reached Mangalamdam Police Station with the appellant and the contraband at 8.00 p.m. on that day. PW5 registered Crime No.70 of 2001 of that Police Station in respect of the occurrence. Ext.P7 is the F.I.R. thus drawn by PW5. He sent the properties and the records before the Crl. Appeal No.2096 of 2006 -3- Judicial First Class Magistrate's Court, Alathur, on the next day. Ext.P8 is the List of Property. 4. The investigation of the case had been taken over by PW8, the Circle Inspector of Police, Vadakkencherry. He had questioned the witnesses and recorded their statements. He had gone to the place of occurrence and prepared Ext.P5 Scene Mahazar. He had produced the appellant before the court along with the Remand Report. He had also produced the Forwarding Note before the court for subjecting the sample to chemical analysis. Ext.P10 is a copy of that Forwarding Note. Subsequently, the investigation was continued by PW7, the Sub Inspector of Police, Mangalamdam Police Station. He had completed the investigation and submitted the Final Report before the court. 5. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Palakkad, and, from there, it was made over to the Assistant Sessions Court, Palakkad. Later, the case was Crl. Appeal No.2096 of 2006 -4- withdrawn and transferred to the Additional Sessions Court (Ad hoc)-II, Palakkad. The court below framed a charge against the appellant alleging the offence under Section 55(g) read with Section 8(2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 8 and marked Exts.P1 to P10 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence has examined DW1 and marked Ext.D1 on its side. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(g) read with Section 8(2) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 6. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the prosecution case that the appellant was found possessing about 10 litres of wash in a clay-pot for the purpose of manufacturing arrack at about 7.00 p.m. on Crl. Appeal No.2096 of 2006 -5- 11-07-2001 and the contraband was seized and the appellant was arrested then and there by PW5. PW5 deposed, during examination in chief, that he had sent the properties to the court on the next day. Ext.P8 is the List of Property with which the properties were produced before the court. It can be seen from this document that the properties were produced before the court only on 17-07-2001. What was the reason for occurring such an inordinate delay in producing the properties? PW5, during cross-examination, deposed that he had signed Ext.P8 on 12-07-2001 and entrusted the properties with a policeman (presumably for producing before the court). He further stated that thereafter he had not enquired about it. The explanation thus offered by PW5 is not a satisfactory explanation at all for the delayed production of the properties before the court. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. A learned single Judge of this Court in Crl. Appeal No.2096 of 2006 -6- ## **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** found, for the reason stated therein, that an unexplained delay of a single day is fatal to the prosecution case. In the case on hand, there is absolutely no explanation for the delay that occurred in producing the properties before the court. Therefore, the unexplained inordinate delay that occurred in producing the properties before the court is fatal to the prosecution case and on that ground alone the appellant is entitled to an order of acquittal. 7. Similarly, there is absolutely no evidence to show where the properties were kept after they were entrusted by PW5 to the policeman and before they were produced before the court on 17-07-2001. None of the official witnesses examined in this case has offered any explanation with regard to the custody of the properties till they were produced before the court. The policeman with whom the properties were entrusted by PW5 was not examined in this case. In short, there is absolutely no evidence as to whether the properties were under safe custody or not before they Crl. Appeal No.2096 of 2006 -7- were produced before the court. In **Narayani v. Excise Inspector (2002 (3) KLT 725)** , a learned single Judge of this Court observed as follows: “.......... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out. ..........” Therefore, the accused was found to be entitled to the benefit of doubt in that case. In the case on hand also, such a benefit is to be extended to the appellant. 8. Ext.P9 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in both the samples. It is also certified in Ext.P9 that the seals on the packets were intact and found tallied with the sample seal provided. Whose sample seal was provided? Was it the seal of the court or the sample of the seal affixed on the Crl. Appeal No.2096 of 2006 -8- jerrycans containing samples? Ext.P10 is a copy of the Forwarding Note submitted before the court for sending the samples for subjecting them to chemical analysis. No sample impression of the seals affixed on the jerrycans containing samples was affixed on Ext.P10. Whether the sample seal was affixed on the original of Ext.P10 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext.P10, it has to be presumed that such sample seal was not affixed on the original Forwarding Note unless proved otherwise. In the case on hand, such presumption has not been rebutted by the prosecution. A few more facts also have to be considered along with this. A copy of the covering letter sent by the Judicial First Class Magistrate, Alathur, to the Joint Chemical Examiner is seen enclosed with Ext.P10. It is stated in this letter that the material objects were packed and sealed. The specimen of the seal of the court was affixed also in the letter. It is certified in Ext.P9 Certificate of Chemical Analysis that the seals on the packets were intact Crl. Appeal No.2096 of 2006 -9- and found tallied with the sample seal provided. So, it can be presumed that the seals on the packets containing the samples were compared with the sample seal provided. The investigating agency does not have a case that they had packed the jerrycans containing samples. Ext.P10 copy of the Forwarding Note also does not describe the samples as in packets. A comparison of the seals affixed on the packets with the sample seal provided from the court as happened in this case will not give any assurance that the Chemical Examiner examined really the samples of the contraband allegedly seized from the appellant. In view of these facts, there is no assurance that the samples of the contraband allegedly seized by PW5 from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the samples is provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the samples taken from the bulk allegedly Crl. Appeal No.2096 of 2006 -10- seized from the appellant in this case. ## 9. This Court in **Rajamma v. State of Kerala (2014** ## **(1) KLT 506)** has held as follows: “..........The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” This Court in **Ravi v. State of Kerala** (supra) has held that the prosecution 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 Crl. Appeal No.2096 of 2006 -11- Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution 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. Therefore, Ext.P9 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 10. PW5, the Detecting Officer, and PW6, the Police Constable claimed to have accompanied PW5 at the time of detecting the offence, have deposed before the court supporting the prosecution case. PWs.2 and 3 were cited and examined by the prosecution as independent occurrence witnesses for proving the prosecution version of occurrence. But, both of them have not supported the prosecution case. They were declared hostile to the prosecution. On considering the totality of the facts and circumstances, this Court is of the view that it is unsafe to convict the appellant for the serious offences alleged against him in this case. The Crl. Appeal No.2096 of 2006 -12- appellant, at least, is entitled to the benefit of doubt. 11. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offences alleged against him. 12. In the result, the conviction and sentence passed against the appellant are set aside. He is acquitted of the offences under Sections 55(g) and 8(2) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal No.2096 of 2006 -13-