K.V. Kunhiraman v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY ,THE 20TH DAY OF DECEMBER 2018 / 29TH AGRAHAYANA, 1940 ## CRL.A.No. 1237 of 2006 AGAINST THE JUDGMENT DATED 15.05.2006 IN SC 165/2003 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE ## APPELLANT/ACCUSED: K.V.KUNHIRAMAN, S/O. MADIKKANAM RAMAN, PATHIKKARA HARIJAN COLONY, BALAL VILLAGE,, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADVS. SRI.THOMAS ABRAHAM SRI.K.B.ARUNKUMAR ## RESPONDENT/COMPLAINANT: STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. SMT. MAYA M.N, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.09.2018, THE COURT ON 20.12.2018 PASSED THE FOLLOWING: Crl.Appeal No. 1237/2006 -2- ## **JUDGMENT** The appellant is the accused in S.C. No. 165 of 2003 on the file of the Additional Sessions Court (Ad hoc)-III, Kasaragod for an offence punishable under Section 55(g) of the Kerala Abkari Act. 2. The case of the prosecution is as follows: On 18.12.2000, at 2.30 p.m., the Preventive Officer, Nileshwar Excise Range, during patrol duty, has found the accused in possession of 10 litres of wash in a plastic can having capacity of 20 litres at the road while going through the Harijan colony to Anamanhalthattu situated at Pathikkara desom in Balal Village. 3. The case was registered as Crime No. 47 of 2000 of Nileshwar Excise Range. The case was taken on file as C.P. 22 of 2002 on the file of the Judicial First Class Magistrate-II, Hosdurg and was committed to Sessions Court, Kasaragod under Section 209 Cr.P.C. Thereafter, the Sessions Court had made over the case to the Additional Sessions Court (Adhoc)-III, Kasaragod for disposal. 4. On the side of the prosecution, PWs 1 to 7 were examined and Exts.P1 to P8 were also marked. MO1 cannas was also marked as material object. PWs 3 and 4, who are independent witnesses, turned hostile to the prosecution. Crl.Appeal No. 1237/2006 -3- 5. The accused pleaded not guilty to the charges levelled against him. The learned Sessions Judge, after trial, as per judgment dated 15.05.2006 found the accused guilty of the aforesaid offence and convicted and sentenced him to undergo simple imprisonment for four years and to pay an amount of `1,00,000/- and in default to pay the fine, to undergo simple imprisonment for six months. Set off was also allowed. 6. Heard the learned counsel for the appellant and the learned Public Prosecutor, apart from perusing the records. 7. The learned counsel for the appellant argued that the prosecution failed to establish that the accused possessed the contraband article. He has also contended that the prosecution failed to prove that the contraband articles were seized from the appellant and the alleged signatures over the cans and samples were also not proved. He has further contended that the trial court failed to appreciate the fact that there is no evidence to prove that the content sent to the Court is, in fact, taken from the contraband allegedly received from the accused. 8. In fact, the case was charged under Section 55(g) of the Kerala Abkari Act. PW7, the then Excise Inspector, Nileshwar Excise Crl.Appeal No. 1237/2006 -4- Range, is the Investigating Officer and he has recorded the statement of the witnesses and submitted the charge sheet against the accused. PW1 is the leader of the party who has arrested the accused as per Ext.P1 arrest memo and seized the property. He has also taken sample and prepared Ext.P3 mahazar for the incident. PW2, who has accompanied the party of PW1, has given evidence in corroboration of the evidence already tendered by PW1. PWs 3 and 4 are the independent witnesses cited by the prosecution to prove the incident. They turned hostile to the prosecution and nothing was brought out in the cross examination to discredit their evidences. 9. PW1, while he was in the box, testified that on 18.12.2000, at about 2.30 p.m., when they were doing their duty, they have seen the accused on the roadside going through the Pathikkara Harijan Colony to Anamanhalthattu side with MO1 jerry can. On getting some doubt, they intercepted the appellant and inspected MO1 jerry can in the presence of the witnesses and they found that the can contained about 10 litres of wash. He arrested the accused, recorded arrest memo and seized the contraband article from his possession. Then he has taken a sample of 500 ml. of wash in a bottle having capacity of 750 ml., sealed and labelled it properly and affixed his personal seal as Crl.Appeal No. 1237/2006 -5- 'T.P.K' on the label and obtained the specimen impression of the sample seal affixed on the sample bottle in a separate paper as per Ext.P2. He has obtained the signature of the appellant and the witnesses on the label and affixed on the sample bottle including his signature. Thereafter, he has prepared Ext.P3 mahazar and has produced the appellant, records and thondi article before the Police Station. 10. PW2, the then Excise Guard, Nileshwar Excise Range, who has accompanied the party of PW1, has also given evidence in corroboration of the evidence already tendered by PW1. PWs 3 and 4 are the two independent witnesses. They turned hostile to the prosecution and has given evidence to the effect that they have not seen the incident as alleged by the prosecution. PW5, who is the then Preventive Officer, Nileshwar Excise Range, has given evidence to the effect that on 18.12.2000, PW1 and his party have produced the accused and records in the office and he has registered Ext.P4 Crime and Occurrence Report. The properties and samples were produced before court as per Ext.P5 property list and P6 forwarding note. The Judicial First Class Magistrate Court has received Ext.P7 analysis report. PW6, the then Village Officer of Balal Village Office has given Crl.Appeal No. 1237/2006 -6- evidence that he has inspected the scene of occurrence and prepared Ext.P8 site plan. PW7, the then Excise Inspector, Nileshwar Excise Range was the Investigating Officer and he has filed the charge sheet before the court. PW1 has identified the appellant who was in the box and also identified MO1 can produced before court. According to learned counsel for the appellant, the evidence adduced by PWs 1 and 2 are not sufficient enough to arrest the accused. It is also argued that there was a gross delay in sending the sample for chemical analysis and the independent witnesses were also not examined. Ext.P1 is the arrest memo; P2 is the specimen seal; Ext.P3 is the mahazar; Ext.P4 is the occurrence report; P5 is the property list; P6 is the forwarding note dated 19.12.2000; Ext.P7 is the chemical analysis report dated 11.01.2002; and Ext.P8 is the site plan. The appellant herein was arrested on 18.12.2000. Ext.P3 mahazar was prepared on the same day. The case was registered on 19.12.2000. Ext.P5 property list and P6 forwarding note were also prepared on 19.12.2000. 11. According to the appellant's counsel the findings entered by the court below is without any material contradiction or reasonable direction. The main argument on the side of the appellant's counsel is Crl.Appeal No. 1237/2006 -7- that eventhough the prosecution has detected the offence by seizing the contraband articles from the possession of the appellant, the prosecution have not sent the sample for chemical analysis within time. In fact, the contraband articles seized from the possession of the appellant has been produced on the next day of the detection. The samples which were produced before the court were kept there and it was sent for chemical analysis to the Lab on 04/01/2001. This fact has been pointed out by the appellant's counsel by stating that the thondi Clerk of the court as well as the Constable who received the sample have not been examined in this case. 12. In this connection I have perused the records and found that there is a delay of 13 days in sending the contraband articles for the chemical analysis. The sample was not sent immediately after the receipt of the same by the court. In fact, the Police Constable who received the sample was also not examined. So, it can be presumed that there was a possibility of the same being given on a subsequent date. The benefit of doubt is in favour of the appellant . It is true that there is a delay of 13 days in sending the articles for chemical analysis report. The prosecution has to establish that the sample which was kept by the court was sent in a tamper proof condition to Crl.Appeal No. 1237/2006 -8- the Laboratory. The failure of the prosecution to examine the Police Constable enures to the benefit of the appellant. In fact, this offence was detected in the year 2000 alleging that the appellant / accused was found in possession of 10 litres of wash in a 20 litres can. 13. The learned counsel for the appellant has placed reliance on the decision reported in _**Kumaran P v. State of Kerala and another**_ [2016(5) KHC 632], in which it is held that in cases of forwarding of samples, where the space meant for writing the name of Excise Guard/Preventive Officer with whom sample was sent, remaining vacant in copy of forwarding note, the prosecution has to examine the Thondy Clerk of the Court or Excise Guard concerned to prove the despatch of the sample to the laboratory in a tamper proof condition. The absence of such examination will enure to the benefit of the accused. He has also cited the decision in _**Viswanadhan v. State of Kerala**_ [2016(1) KLD 883], wherein it is held that non-examination of the Police Constable who received the sample is fatal and without examining him,it can be presumed by the court that there was a possibility of the same being given on a subsequent date. Such nonexamination coupled with non-explained delay in reaching the sample at the Chemical Examiner's lab is fatal and the accused is entitled to Crl.Appeal No. 1237/2006 -9- the benefit of doubt. 14. As has been observed above, there is a delay of 13 days in sending the sample for chemical analysis and this fact has been not properly explained by the prosecution. On the aforesaid grounds, I find that the appellant is entitled to get acquittal as prayed for. In the result, this appeal is allowed. The appellant herein is acquitted of the charges leveled against him. In the result, this appeal is allowed and the conviction and sentence passed by the court below are set aside. The appellant herein is acquitted of the charges leveled against him. The bail bond, if any, executed shall stand cancelled forthwith. sd/- **ANNIE JOHN, JUDGE.** _Rv/pv_ Crl.Appeal No. 1237/2006 -10-