K.S. Vijayan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 14[TH] DAY OF JUNE 2022 / 24TH JYAISHTA, 1944** ## **CRL.A NO. 1114 OF 2011** **AGAINST THE JUDGMENT DATED 31.05.2011 IN S.C.No.173 OF 2007 ON THE FILES OF THE ADDITIONAL SESSIONS JUDGE(ADHOC)-II,** ## **KALPETTA** ## **APPELLANT/ACCUSED:** **K.S.VIJAYAN S/O.SUKUMARAN, KOVALAYIL HOUSE, POOTHADI POST, SULTHAN BATHERY, WAYANAD DISTRICT. BY ADVS. SRI.S.M.PRASANTH DR.K.BALAKRISHNAN** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **SMT MAYA M.N – PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 ## Crl.A.1114 of 2011 **P.G. AJITHKUMAR, J ----------------------------------------------------------Crl.A.No.1114 of 2011 ----------------------------------------------------------Dated this the 14[th] day of June, 2022** ## **JUDGMENT** Challenge in this appeal, filed under Section 374 of the Code of Criminal Procedure, 1973, is to the judgment of conviction and the order of sentence dated 31.05.2011 by the Additional Sessions Judge (ADHOC)–II, Kalpetta in Sessions Case No.173 of 2007. The appellant was the accused and he was convicted for offence punishable under Section 8(1) and (2) of the Abkari Act, 1077 and sentenced to undergo simple imprisonment for a term of two years and to pay a fine of Rupees one lakh, in default of payment of which to undergo simple imprisonment for a period of one year. 2. The case of the prosecution was that at or about 1.00 p.m on 27.10.2006, the appellant was found in possession of 3.2 liters of arrack contained in a jerrycan at Kaniyambatta. While PW1, the Excise Inspector, Kalpetta 3 ## Crl.A.1114 of 2011 Excise Range along with PW2, his subordinate was on patrol duty found the appellant possessed with the contraband resulting his arrest and seizure of the articles from him. 3. After the arrest of the appellant and seizure of the contraband from his possession, he was produced before the jurisdictional Magistrate. After necessary investigation, a report as contemplated in Section 50 of the Abkari Act was submitted before the Chief Judicial Magistrate, Kalpetta. On committal, the matter was made over, after taking cognizance by the Sessions Court, Kalpetta, to the Additional Sessions Judge(Adhoc)-II, Kalpetta. A charge under Section 8(1) and (2) of the Abkari Act was framed and the appellant stood trial on that charge. Evidence in the case comprises oral testimonies of PWs 1 and 2 and Exts.P1 to P8. MOs 1 and 2 were identified as well. When the appellant was examined under Section 313(1)(b) of the Code, he has denied all the incriminating circumstances found in evidence against him. He raised a case of total denial. No defense evidence was let in. The learned Sessions Judge, after considering the said evidence, found that the accused had 4 Crl.A.1114 of 2011 committed the offence. 4. The learned counsel appearing for the appellant would contend that the learned trial Judge did not consider the glaring laches on the part of the prosecution while making the seizure and preparing the representative samples and also the delay occurred between the date of offence and date of filing the final report in court, resulting in a miscarriage of justice. The learned counsel further would submit that it was PW1 who detected the offence and undertook the entire investigation including filing of the report and that resulted in total prejudice against the appellant. The learned counsel seriously contended that the trial court did not consider that aspect at all while appreciating the evidence and the prejudice that has occurred on account of the same. 5. The learned Public Prosecutor on the other hand would contend that evidence of PW1 is sufficiently corroborated by the evidence tendered by PW2 in the material particulars and therefore there is no question of prejudice to the appellant on account of having the detection 5 ## Crl.A.1114 of 2011 and investigation being conducted by PW1 himself. As regards the lack of seal in the seizure mahazar, Ext.P3, the learned Public Prosecutor would submit that the sample alone was required to be sealed and as the sample was received in the chemical examiner’s laboratory intact as could be seen from Ext.P7, chemical analysis report, the said contention of the appellant cannot be held good. 6. The offence was detected on 27.10.2006. After due investigation, the report as contemplated in Section 50 of the Abkari Act was submitted before the Chief Judicial Magistrate, Kalpetta on 16.07.2007. There occurred a delay of about nine months. It is the requirement of Section 50 of the Act that every investigation under the Act shall be completed without necessary delay. It certainly obligates the investigating officer to complete the investigation and submit the report as early as possible. But being a public officer, the Abkari officer may often be burdened with a heavy workload and the command of Section 50 of the Abkari Act in the matter of expeditious investigation may not be literally practical. The question of delay always has been 6 ## Crl.A.1114 of 2011 a matter of concern in criminal investigations. All the same, it is the settled law that delay alone may not result in the discarding of a criminal prosecution altogether. Of course, if there is inordinate delay and the delay causes some kind of prejudice against the accused, that may be fatal to the prosecution. In this case, however, there is nothing on record to show that on account of such delay alone, there caused any prejudice to the appellant. During crossexamination of PW1, nothing has been suggested to show that there occurred any kind of prejudice on account of such delay. In the said circumstances, I am unable to accept the said contention of the learned counsel appearing for the appellant. 7. It is PW1 who detected the offence, arrested the accused, seized the contraband, prepared samples, conducted investigation including recording the statements of the witnesses and submitted various reports including one under Section 50 of the Abkari Act. It is true that simply because the officer who detected the offence himself has conducted the investigation, it cannot be said that the 7 ## Crl.A.1114 of 2011 prosecution necessary has to fail. Here again, the question depends on whether any prejudice has occasioned to the appellant on account of the same officer conducting both detection and the investigation. 8. PW1 undoubtedly is an empowered officer under the Act. Going by the scheme of the Abkari Act, investigation of a crime that arises in the territorial jurisdiction of an officer in charge of an Excise office, is his duty. Therefore there is a statutory compulsion for the officer in charge that an excise officer to conduct investigation in a case where he himself had detected the offence. But fairness always requires to have the investigation of a case conducted by a different officer. 9. Coming to the facts of this case, evidence on record would not show that by conducting investigation by PW1 himself, any right of the appellant has been adversely affected except on one aspect that there is lack of sample seal in the seizure mahazar which can create doubt regarding proper custody and genuineness of the contraband and the sample. This aspect relates to the next submission 8 ## Crl.A.1114 of 2011 of the learned counsel that failure to affix sample in Ext.P3 mahazar defies the reliability of the case of the prosecution. 10. In the above aspect the learned counsel for the appellant placed reliance on an unreported decision of this Court in Crl.Appeal No.195 of 2008 dated 04.03.2022. The learned Single Judge relying on **Moothedath Sivadasan and Another v. State of Kerala [2021 KHC 3232]** took the view that failure to affix sample seal on the seizure mahazar can in certain cases becomes fatal to the prosecution case. It was held, “6. The main contention put forward by the learned counsel for the appellant is regarding the failure on the part of the prosecution in establishing the link between the contraband article allegedly seized from his possession, with the sample which was subjected to chemical analysis. It is discernible from Ext.P2 seizure mahazar that immediately upon seizure, two samples were taken from the articles seized, one from one of the bottles having the capacity of 375ml and the other from one among the bottles having the capacity of 180ml. It is also stated that after drawing the sample as mentioned above in two separate bottles, both of them were sealed and submitted before the court. 9 ## Crl.A.1114 of 2011 However, the crucial aspect to be noticed in this regard is that Ext.P2 seizure mahazar, a crucial document by which seizure was effected, does not contain the impression of specimen seal claimed to have been affixed on the sample nor it contain the description of the said seal. In **Moothedath Sivadasan and Another v. State of Kerala [2021 KHC 3232]** , this Court clearly observed that the absence of seal on seizure mahazar or the description thereof in the same is a crucial lacuna on the part of the prosecution. ## 7. In **Vijay Pandey v. State of Uttarpradesh [AIR** **2019 SC 3569]** , it was held that, merely because of the reason that, the chemical analysis contains the nature of the samples seized, the same by itself cannot be a ground for conviction unless it is shown that, the very same sample which was taken from the articles seized from the possession of the accused was subjected to chemical analysis. In order to establish the same, the prosecution has to prove each and every link right from the seizure of the contraband article till it reaches at the hands of the Analyst. In this case, Ext.P2 seizure mahazar does not contain the impression of the seal or the description thereof, and hence it cannot be concluded that, the aforesaid link has been established by the prosecution. The absence of the 10 ## Crl.A.1114 of 2011 establishing the said link results in failure on the part of the prosecution to prove the tamper proof condition of the sample subjected the chemical anlysis. In such circumstances, it is a lacuna in the prosecution case and the appellant is entitled for the benefit of doubt. In the above circumstances, I am of the view that, the finding entered into by the Sessions Court as to the guilt of the appellant is liable to be interfered with” 11. The learned Public Prosecutor would submit that in the absence of any evidence to indicate any tampering with either the contraband or the sample produced before the court, the said principle cannot be applied. The principle laid down in the said decision does not give room for drawing such a distinction. The failure to affix the specimen seal, which was affixed on the sample, in the seizure mahasar leaves a doubt in the link between the sample prepared at the spot and the sample examined in the laboratory. Hence, I do not find any reason to deviate from the said view. Needless to say, the benefit of any doubt in the case of the prosecution has to be extended to the accused. 12. In the circumstances, I am of the view that the 11 ## Crl.A.1114 of 2011 prosecution has failed to prove the charge against the accused beyond a reasonable doubt. Therefore the prosecution necessarily fails. Hence I find that the conviction and sentence of the appellant as per the impugned judgment are liable to be set aside. I do so. The appeal is allowed. The accused is set at liberty. If the appellant is in custody, he will be released forthwith. If he has deposited any amount towards the fine, the same will be refunded to him. **Sd/P.G. AJITHKUMAR JUDGE** PV