Kuttan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 25TH DAY OF JUNE 2014/4TH ASHADHA, 1936 CRL.A.No. 749 of 2004 (E) ----------------------------AGAINST THE JUDGMENT IN SC 49/2004 of III ADDITIONAL SESSIONS COURT (ADHOC), THRISSUR DATED 27-04-2004 --------- APPELLANT/ACCUSED: ------------------------KUTTAN, S/O. KOCHUNNI, KAYAMPURATH HOUSE, VELLANI, KARALAM MUKUNDAPURAM TALUK. BY ADVS. SRI.P.VIJAYA BHANU SRI.TONY MATHEW RESPONDENT/COMPLAINANT: ---------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.749 of 2004 -----------------------------------------------Dated this the 25[th] day of June, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)I, Thrissur, for the offence under Section 58 of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1 lakh and,₹ in default of payment of fine, to undergo rigorous imprisonment for three months. The appellant challenges the conviction and sentence so passed by the court below in 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: PW4, the Excise Preventive Officer, Excise Range Office, Irinjalakkuda, and his party went to Vellani in Karalam Village at about 5.45 p.m. on 13-08-1999 for enquiring about Crl. Appeal No.749 of 2004 -2- a complaint received from the Pourasamithy that the appellant was selling illicit liquor. When they reached there, appellant was seen walking carrying a bag in his right hand. Seeing the excise party, the appellant attempted to flee away. But, he was stopped there by PW4. On examination of the bag carried by the appellant, four bottles of 750 ml. size containing coloured illicit liquor were found. Therefore, PW4 arrested the appellant then and there. Ext.P2 is the Arrest Memo prepared by PW4 and Ext.P3 is the notice of arrest served on the wife of the appellant. The illicit liquor found in all the four bottles was alike. Therefore, PW4 has drawn 300 ml. of illicit liquor in a 375ml. bottle from one of the four bottles. The sample so drawn was sealed. All the four bottles containing illicit liquor were also sealed. The contraband including the sample and the plastic bag were seized by PW4 under Ext.P1 Seizure Mahazar in the presence of witnesses at 6.00 p.m. on that day. PW4 reported at the Excise Range Office, Irinjalakkuda, with the accused, contraband articles and the records. CW5, the Excise Crl. Appeal No.749 of 2004 -3- Inspector of that Range Office, registered Crime No.60 of 1999 in respect of the matter. Ext.P4 is the Crime and Occurrence report thus drawn by CW5. CW5 has produced the accused along with the contraband items and the records before the learned Magistrate on 14-08-1999. He has also submitted a requisition for conducting Chemical Analysis of the sample. He has conducted investigation of the case. He has questioned PW2 and recorded his statement. CWs.6 to 8, the Excise Inspectors, were in charge of the investigation of the case thereafter. Subsequently, PW3 continued the investigation. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the Judicial First Class Magistrate's Court, Irinjalakkuda. 4. The learned Magistrate committed the case to the court of Session, Thrissur and, from there, it was made over to the Additional Sessions Court (Adhoc)I, Thrissur. The court below framed a charge against the appellant alleging the offence under Section 58 of the Abkari Act. The appellant Crl. Appeal No.749 of 2004 -4- has pleaded not guilty of the charge. The prosecution has examined PWs.1 to 4 and marked Exts.P1 to P10 and M.O.1 series and M.O.2 on their side. The appellant was questioned under Section 313 of Cr.P.C. He has 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 58 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 against him. It is the case of the prosecution that the appellant was found possessing three litres of coloured illicit liquor in four bottles on 13-08-1999. It is also their case that PW4 has drawn 300 ml. from one of the four bottles as sample in a 375 ml. bottle. That sample was sealed by PW4. PW1, an Excise Guard, has accompanied PW4 at the time of detection of the offence in this case. PW1 deposed that the sample so drawn Crl. Appeal No.749 of 2004 -5- was sealed. PW4 also deposed that the sample was sealed. The contraband with the sample was produced before the court along with Ext.P5 List of Property. The fact that the sample was sealed is also noted in Ext.P5. PW4 deposed that a metal seal was not available at the time of detection of the offence. So, going by his evidence, metal seal was not affixed on the sample. Neither PW1 nor PW3 nor PW4 deposed before the court regarding the nature of the seal affixed on the sample. They have not stated that the sample of the seal claimed to have been affixed on the sample was provided for comparison to the Chemical Examiner. On verification of the records available, the Forwarding Note or a copy of the Forwarding Note is not seen. 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 the sample. Also noted in this document that the seal on the bottle was intact and found tallied with the sample seal provided. Whether the sample seal so noted in Ext.P9 is the sample seal of the seal affixed Crl. Appeal No.749 of 2004 -6- on the sample or the sample seal affixed by the court on the sample. No answer is forthcoming. No explanation is there. It can even be the sample seal of the court. Therefore, there is no assurance that the comparison of the seal affixed on the sample was made with the sample seal of the same provided by the investigating agency to the Chemical Examiner. The prosecution has not adduced any evidence in order to show that the sample of the seal affixed on the sample was provided along with the sample sent to the Chemical Examiner. PWs.1, 3 and 4 do not have a case that the sample seal of the seal affixed on the sample was provided to the Chemical Examiner. Therefore, there is no assurance that the sample of the contraband allegedly seized from the appellant has, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample seal of the seal affixed on the sample 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 Crl. Appeal No.749 of 2004 -7- sample taken from the bulk allegedly seized from the appellant in this case. ## 6. 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.” 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 Crl. Appeal No.749 of 2004 -8- is 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 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 benefit of doubt. 7. In the case on hand, the occurrence was on 13-08-1999. Ext.P9 Certificate of Chemical Analysis dated 22-05-2000 has been received by the court on 02-12-2000. The investigating agency in this case should have submitted the Final Report before the court immediately after the receipt of Ext.P9. But, it is seen that the Final Report has been submitted before the court only on 26-07-2003 i.e. two and a half years after the receipt of Ext.P9 by the court. Why such an inordinate long delay occurred in completing the investigation and submitting the Final Report in the case Crl. Appeal No.749 of 2004 -9- before the court? No explanation has been offered by the prosecution in respect of this matter. It can be seen from the connected papers in the Final Report that CW5 had questioned PW2 and recorded his statement on 20-09-1999. The other three 161 statements produced were recorded by PW3 on 19-07-2003, 11-07-2003 and on 19-07-2003. It can be seen from the Final Report that CWs.6 to 8 were in charge of investigation of this case quite a long period. But, nothing was done during that period. It is the mandate of Section 50 of the Abkari Act that the investigation has to be conducted without unnecessary delay and as soon as the investigation is completed, Final Report has to be forwarded to the court. A gross violation of the mandate of this Section is writ large in this case. Therefore, the inordinate delay in conducting the investigation and submitting the Final Report before the court in this case is fatal to the prosecution in the facts and circumstances of the case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780)** . Crl. Appeal No.749 of 2004 -10- 8. For the foregoing 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 under Section 58 of the Abkari Act. 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 58 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