KOTTAN, S/O NARA AMBU v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937 CRL.A.No. 177 of 2006 -------------------------- AGAINST THE JUDGMENT IN SC 132/2003 of ADDL. SESSIONS COURT (ADHOC)III, KASARAGODE DATED 27-12-2005 CP 16/2002 of J.F.C.M.-II,HOSDRUG ## APPELLANT/ACCUSED: -------------------- KOTTAN, S/O. NARA AMBU, AGED 49, RESIDING AT NARA DESOM, EMBUKKAL, MADIKAL VILLAGE, HOSDRUG TALUK. BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI ## RESPONDENT/COMPLAINANT: -------------------------- THE STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUIBLI PROSECUTOR SMT. LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J. =========================== Crl. Appeal No.177 of 2006 =========================== Dated this the 9[th] Day of February, 2016** ## **J U D G M E N T** The appellant was convicted by the Additional Sessions Court (Ad hoc)-III, Kasaragod, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and, in default of payment of fine, to undergo simple imprisonment for six months. Challenging the conviction and sentence so 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: PW1, the Preventive Officer, Excise Range Office, Nileshwar, CRA 177/2006 2 and his party were on patrol at about 12.30 p.m on 06.11.2000. When they reached Nara in Madikai Village, they got information that the appellant was selling arrack near a reading room. They reached that place. While so, the appellant was seen standing under a cashew tree carrying a 10 litre jerrycan in his right hand. Seeing the excise party, the appellant ran away leaving the jerrycan there. Even though the excise party followed him, he could not be found out. So the excise party returned to the place where the jerrycan was remaining. On examining that jerrycan, 5 litres of arrack was found in it. Since the appellant has committed an offence under the Abkari Act, the jerrycan containing arrack was seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. He has drawn 300 ml. of arrack as sample in a 375 ml. bottle from the bulk containing in the jerrycan. The jerrycan containing arrack and the sample bottle were sealed by PW1 using his personal seal. Thereafter, PW1 and his party reached the Excise Range Office, Nileshwar, with the CRA 177/2006 3 properties and the records and produced them before PW5, the Excise Inspector, at about 2.30 p.m. on the same day. PW5 has registered Crime No.38 of 2000 of that Range Office in respect of the occurrence. Ext.P2 is the crime and occurrence report thus prepared by PW5. He has produced the contraband including the sample along with Ext.P3 List of Property and Forwarding Note before the Judicial First Class Magistrate's Court-II, Hosdurg. Ext.P4 is a copy of that Forwarding Note. Ext.P5 is the certificate of chemical analysis issued from the Regional Chemical Examiner's Laboratory, Kozhikode. The appellant was granted anticipatory bail by the Court of Session, Kasaragod, and, accordingly, he was released on bail on 04-01-2001. The investigation of the case was conducted by PW8, the Excise Inspector, Excise Range Office, Nileshwar. He has questioned the witnesses and recorded their statements. Ext.P6 is a site plan prepared by PW7, the Village Assistant, Madikai. PW8 completed the investigation and submitted the Final Report before the court. CRA 177/2006 4 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Kasaragod, and, from there, it was made over to the Assistant Sessions Court, Hosdurg. The Assistant Sessions Court, Hosdurg, framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. Later, the case was made over to the Additional Sessions Court (Ad hoc)-III, Kasaragod. The prosecution examined PWs.1 to 8 and marked Exts.P1 to P6 and MO.1 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 not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed by the court CRA 177/2006 5 below against him. It is the case of the prosecution that the appellant was found in possession of MO.1 jerrycan containing about 5 litres of arrack at about 12.30 p.m on 06-11-2000 and, seeing the excise party, he ran away. PW1 has seized MO.1 under Ext.P1 Seizure Mahazar in the presence of witnesses. The independent witnesses, PWs.3 and 4, examined by the prosecution did not support the prosecution version of occurrence. They were declared hostile to the prosecution. According to PW1, after the seizure of the contraband, he reached the Excise Range Office, Nileshwar, with the contraband and the records and produced them before PW5. PW5 deposed before the court that they were so produced before him at about 02.30 p.m. The contraband including the sample was produced before the court on the next day, namely, 07-11-2000, as evident from Ext.P3 List of Property. Where the jerrycan containing bulk of arrack and the bottle containing its sample were kept after they were received by PW.5 at about 02.30 p.m on 06-11-2000 and before they were produced in court on CRA 177/2006 6 07-11-2000? Was it under safe custody? No answer was forthcoming in regard to these matters from the prosecution. None of the official witnesses examined in this case stated before the court that they were under safe custody. In fact, there is no evidence with regard to their custody during that period. 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 CRA 177/2006 7 a benefit has to be extended to the appellant. 6. Ext.P5 is the Certificate of Chemical Analysis. It is reported in this document that ethyl alcohol was detected in the sample. It is also certified in Ext.P5 that the seal on the bottle was in tact and found tallied with the sample seal provided. Whose sample seal was provided? Was it the seal of the court or the sample seal of the seal affixed on the sample bottle by PW1? PW1 noted in Ext.P1 Seizure Mahazar that he had affixed his personal seal on the sample bottle. Ext.P4 is a copy of the Forwarding Note produced before the court for subjecting the sample to chemical analysis. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext.P4. Whether the sample seal was affixed on the original of Ext.P4 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.P4, it has to be presumed that such sample was not affixed on the original Forwarding Note unless proved otherwise. A copy of the CRA 177/2006 8 Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evident from the contents of the form of the Forwarding Note itself. They include the quantity and description of the sample drawn from the bulk of the contraband, details of the case and the space for providing the sample impression of the seal affixed on the sample taken from the bulk of the contraband. Therefore, as already stated, the absence of the sample seal in the space provided in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal is not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution. The matter does not end there. A seal of the court is seen affixed in the space provided for affixing the sample seal in Ext.P4. Therefore, there is every reason to believe that the Chemical Examiner compared the seal on the sample bottle with the sample seal of the court so provided in the Forwarding Note. In view of these facts, there is no CRA 177/2006 9 assurance that the sample of the contraband allegedly seized by PW1 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 sample bottle 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 sample taken from the bulk allegedly seized from the appellant in this case. ## 7. 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 CRA 177/2006 10 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.” A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** 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 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 CRA 177/2006 11 Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, in the case on hand, Ext.P5 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 8. For the forgoing reasons, the impugned conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence alleged against him. 9. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 55(a) 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** True copy AVS/ks P.S.(Hr.Gr.)to Judge