KUTTAN v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937** **CRL.A.No. 1348 of 2004 (C)** **---------------------------** **AGAINST THE JUDGMENT IN SC 333/2003 of III ADDITIONAL SESSIONS JUDGE (ADHOC) FAST TRACK COURT NO.1, THRISSUR DATED 11-08-2004** **APPELLANT(S)/ACCUSED.:** **--------------------KUTTAN, S/O.KORODAN KORU,** **KALLUR.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** ## **RESPONDENT(S)/COMPLAINANT.:** **--------------------------STATE OF KERALA,R EP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. N. SURESH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.1348 of 2004 ---------------------------------------------Dated this the 24[th] day of February, 2016 ## **JUDGMENT** This appeal is preferred against the conviction and sentence in S.C.No.333/2003 of III Additional Sessions Judge (Adhoc), Fast Track Court No.I, Thrissur u/s.58 of the Abkari Act. The charge against the appellant is that on 4.12.1998 at 5.30 p.m., while the Preventive Officer, Irinjalakuda was conducting patrol duty, the accused was found in front of the house of one Ramakrishnan in Kallur Desom with a bag. The Excise party inspected the bag and found 4 bottles in it and detected 750ml each coloured arrack in it. The contraband articles were seized after preparing a mahazar, reaching at the Excise Office, he registered a crime and occurrence report. After completing investigation, the Excise Inspector, Excise Range, Irinjalakuda Crl.. Appeal No.1348/2005 Crl.. Appeal No.1348/2005 2 laid charge before Judicial First Class Magistrate, Irinjalakuda u/s.8(1) and (2) of the Abkari Act from there it was committed to Sessions Court, Thrissur. Subsequently, the case was made over to III Additional Sessions Judge (Adhoc) Fast Track Court-I, Thrissur. 2. During trial, prosecution examined PW1 to PW4 and Exts.P1 to P10 were marked as documentary evidence. MO1 and MO2 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned III Additional Sessions Judge convicted the accused u/s.58 of the Abkari Act and sentenced to rigorous imprisonment for one year and fine of 1 lakh, in₹ default of payment of fine, rigorous imprisonment for three months. Being aggrieved by that, the accused preferred this appeal. 3. Heard both sides. The learned counsel appearing Crl.. Appeal No.1348/2005 3 for the appellant contended that no forwarding note was prepared at the time of sending the sample for chemical examination. The occurrence report was prepared on 5.12.1998 and a false case was foisted against the accused. 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.” The seizure of arrack was deposed by PW1 then Preventive Officer of Excise Office, Irinjalakuda. Consequent to the seizure, he registered the above case and investigation was conducted. The oral evidence of PW1 shows that on 4.12.1998 while he was conducting patrol duty and reaching at Kallur Crl.. Appeal No.1348/2005 4 Estate Road Junction, the appellant was found walking towards northern side, carrying a plastic bag. PW1 intercepted him and inspected the bag, in which he found four bottles of coloured arrack each containing 750ml. The accused was arrested and contraband articles were seized. He took 300ml arrack as sample. He affixed his personal seal and label in the sample. The independent witnesses present there also put their signature in the label. He prepared Ext.P1 mahazar. Ext.P2 is the arrest memo and Ext.P3 is the arrest notice. The accused was produced before Excise Range Office. PW1 identified MO1 series and MO2. Ext.P5 is the crime and occurrence report. Ext.P6 is the property list. The seized articles were produced before chemical examiner's lab through Court. Ext.P7 is the chemical analysis certificate. Ext.P8 is the remand application. Ext.P9 is mahazar and Ext.P10 is the sketch. On examination of the narrated facts, it is clear that he had prepared Exts.P1 to P6 and Ext.P8 to P10. Ext.P1 was Crl.. Appeal No.1348/2005 5 produced before Court on the next day, till then it was kept in the Excise Office. But no evidence has been adduced by PW1 to show that at the time of forwarding the sample before Court, he prepared a forwarding note and affixed his seal in the copy of the forwarding note. Analysing the evidence of PW1, it is found that he took sample from each bottle and sealed at the place of occurrence. PW1 admitted his signature in Ext.P1. 5. PW2 and PW3, who are the independent witnesses were declared hostile. They denied their signature in Ext.P2. The investigation was conducted by PW4. PW4 supported the evidence of PW1. He also stated the same version given by PW1 and identified his signature in Ext.P1 and MO1 and MO2. Even though PW1 deposed that he affixed specimen impression seal at the time of preparing the sample, no documents have been produced before Court to show that such procedure was adopted by him at the time of taking sample. In the chemical Crl.. Appeal No.1348/2005 6 examination report, it was reported that the seal of the sample is intact and tallying with the sample seal provided, but copy of the sample seal with forwarding note was not furnished along with the final report. Therefore, in the absence of any evidence with regard to taking of sample, sealing at the place of occurrence and forwarding it to the chemical examiner's lab in a tamper proof condition, the report in Ext.P7 is not sufficient for a conviction u/s.58 of the Abkari **Ravi** v. **State** Act. This position was explained by this Court in **of Kerala** [2011 (3) KLT 353], in which it is held as follows: “.... The prosecution in a case of this nature can succeed only if it is shows that the contraband liquor which was allegedly seized from the accused ultimately reached the hand of the Chemical Examiner by change of hands in a tamper proof condition. (Vide State of Rajasthan v. Daulath Ram (AIR 1980 SC 1314) and Valsala v. State of Kerala (1993 (2) KLT 550 (SC). 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 Kerala (2007 (1) KLT SN 57 (C.No.82) and Sasidharan v. State of Kerala (2007 (1) KLT 720). There is no satisfactory link evidence to show that it 7 Crl.. Appeal No.1348/2005 was the same bottle seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no medding or tampering with the bottles while they were in the custody of PW4. Hence, the result of Ext.P7 Chemical Analysis cannot be applied against the appellant. “ In the result, the conviction and sentence passed by the III Additional Sessions Judge (Adhoc) Fast Track Court-1, Thrissur are set aside and the accused is acquitted and set at liberty. Crl.Appeal is allowed. **P.D. RAJAN, JUDGE.** acd Crl.. Appeal No.1348/2005 8 Crl.. Appeal No.1348/2005 9